127 Wis. 154 | Wis. | 1906
The grounds presented for reversal of the order of the court, which denies plaintiff’s application for a temporary injunction, are, that if defendant be permitted to proceed with the arbitration under the right alleged to be under and pursuant to the franchise it will create a cloud upon plaintiff’s title to the waterworks plant, and compel plaintiff to incur great and unnecessary expense in connection with such proceedings during the pendency of the action, and subject it to great annoyance and vexation in such proceedings and in the management and enjoyment of its property, and also subject it to a multiplicity of actions. Appellant’s counsel frankly meet the question and concede that the trial court’s refusal to grant the relief asked for cannot be attacked unless the record discloses “a reasonable probability of plaintiff’s ultimate success,” and that the refusal to grant the injunction “will render futile, in considerable degree, the judgment sought, or cause serious and irreparable injury to [the] party.” De Pauw v. Oxley, 122 Wis. 656, 659, 100 N. W. 1028. The question is therefore presented: Will plaintiff suffer serious and irreparable injury, or, in the event of its final success in the action, will any judgment it seeks become fruitless in material and substantial respects, if the defendant should proceed with the arbitration as it threatens to do unless restrained by the court ? We will consider the questions upon the assumption that the complaint states facts sufficient
It is contended that the prosecution to completion of the arbitration for the valuation of the waterworks plant will create a cloud upon plaintiff’s title and thereby invade plaintiff’s right to the enjoyment of this property. We are unable to perceive in what respect the arbitration can so affect plaintiff, and no particulars are suggested whereby the arbitration can substantially interfere with its rights and its enjoyment of the property and make them materially different from anything that existed before the arbitration was instituted. No right other than such as theretofore existed is asserted or ^claimed. The proceeding is simply an assertion of a right ■claimed by the defendant under the contract, and, if legal, this was as effectual and as valid a claim before the arbitration as subsequent thereto.
Again, it is claimed that if the arbitration be proceeded with the plaintiff will be subjected to great annoyance and vexation in the proceeding and in the management and enjoyment of the plant. We are again- led to inquire whether there is any substantial ground of complaint alleged here. It may be true that an appraisement will compel plaintiff to participate in the proceedings to bring about a correct valuation, and require that it devote time and attention to the accomplishment of such a result, yet such an imposition cannot be regarded as an annoyance and vexation to plaintiff’s legal rights for which it has no redress because of irreparable injury. The annoyance incident to the determination of the rights of the parties under the franchise is in no sense regarded as a ground for the equitable relief sought.
It is furthermore claimed that, if defendant actually pro-needs with the arbitration, then plaintiff will necessarily be ■compelled to incur great expense in connection therewith. This claim is undoubtedly well founded, but we are unable to find in it a justifiable ground for this equitable relief. Unless it appears that the imnosition of such expense will do
“An injury is irreparable when it is of such a nature that the injured party cannot be adequately compensated therefor in damages, or when the damages which may result therefrom cannot be measured by any certain pecuniary standard.” Wilson v. Mineral Point, 39 Wis. 160.
Whatever damages may be incurred by way of expense and services in connection with the arbitration can readily be measured by a pecuniary standard and adequately compensated. We discover no ground that entitles plaintiff to the temporary injunction.
Should defendant elect to proceed with' the arbitration during the pendency of this action, it seems just and appropriate that defendant should be required to secure the payment of any bill of expense which plaintiff, should it finally succeed in this action, may reasonably incur in connection with the arbitration proceeding. To accomplish this, the circuit court should grant an order restraining defendant from proceeding with the arbitration unless the defendant, at some time during the pendency of the action, give an undertaking with sufficient sureties, in a sum specified by the court, to indemnify plaintiff for the payment of all reasonable expenses incurred by it in such arbitration, and upon the giving of such undertaking by the defendant the temporary order should be deemed vacated and no longer effective for any purpose. As to the amount of such an undertaking, we are of the opinion that $5,000 would be reasonable.
We must therefore reverse the order appealed from and direct that the court grant an order as above indicated. The restraining order of this court will continue in force until the circuit court enters the order as herein directed.
By the Goiirt. — It is so ordered.