Consolidated Vinegar Works v. Brew, 112 Wis. 610

Consolidated Vinegar Works v. Brew

112 Wis. 610 | Wis. | 1902

Winslow, J.

1. It is plain that a cause of action in equity is stated by the complaint, and that the demurrer to the complaint was properly overruled. It is alleged that the defendant was and is the secretary and treasurer of the corporation, and has misappropriated the property of the corporation and refuses to account to the proper officers. This state of facts calls for the interference of a court of equity. The defendant is, in a sense, a trustee of the plaintiff. He is charged with having abused his trust, and converted corporate property to his own use, and in such a manner that the taking of an account is necessary. In such cases the jurisdiction of equity is very well established. Doud v. W., P. & S. R. Co. 65 Wis. 112; North Hudson M. B. & L. Asso. v. Childs, 86 Wis. 292.

2. It is equally plain that the temporary injunctional order went entirely too far. The proper function of such an order (at least in ordinary cases) is simply to restrain *613the commission of some act or acts during the progress of the litigation, or, as otherwise expressed, to maintain the status quo. Stats. 1898, sec. 2774. Such an order is not intended to change the position of the parties or to require the doing of an act which constitutes all or a part of the ultimate relief sought in the action. Its purpose is not to decide the action before trial. In the present case those parts of the injunctional order which require the defendant to pay moneys collected by him in the past, or to be collected in the future, into some place called the treasury of the plaintiff, are plainly erroneous, under the principles just stated. These clauses do not -simply preserve the status quo; they decide the whole controversy in advance. Those clauses which restrain the defendant from appropriating to his own use any corporate moneys already collected or thereafter to be collected are entirely justified by the allegations of the complaint.

By th& Oourt. — The order overruling the demurrer to the complaint is affirmed, and the temporary injunctional order is affirmed, except those parts thereof which require the defendant to pay over moneys into the treasury of the plaintiff, which parts are reversed; and the action is remanded for further proceedings according to law. Respondent will be entitled to tax but one bill of costs.