Kaehler v. Halpin, 59 Wis. 40

Kaehler v. Halpin

59 Wis. 40 | Wis. | 1883

Taylob, J.

Upon the argument in this court the learned counsel for the respondent insists that the appeal should be dismissed, for the reason that the several parties named in said order cannot join in an appeal to this court. The argument of the counsel seems to be that the judgment, although in one order, is a several judgment against each party named therein, and that each can discharge himself from said order by paying the specific amount charged against him, and he has, therefore, no interest in common with the ’other persons named in said order. It is undoubtedly true that each party named in the order can discharge himself by paying the amount ordered to be paid by him, and so is not interested in the payment of the sums charged against his co-defendants. They are, however, all interested in the main question in the case, viz., whether the order adjudging them guilty of a violation of the injunction was properly made, and whether, if they were properly found guilty of such violation, the court had the authority, under the evidence in the case, to make an order requiring them to indemnify the plaintiff for her supposed losses occasioned by such violation. All the defendants having a like interest in these questions, we think it very clear that they not only may join in an ap*43peal from the order, but that the better practice is to require them to do so, if they desire to appeal at all. If each had taken a separate appeal and the appeals were pending in this court, it is evident that the appeals should be heard together and upon the same record, in order to avoid inconsistent decisions arising out of the same transaction. ' The difficulties which might grow out of separate appeals in a case of this kind are alluded to in the case of Kluender v. Fenske, ante, p. 35. This court clearly recognizes the right of all persons against whom the judgment is entered to join in an appeal to this court, even though their interests may be different and the judgment rendered may affect them differently. If the parties appealing are all jointly interested in the questions decided in the action, they ought to appeal jointly. It is a saving of time and expense to permit them to do so, and we know of no rule of law which prevents them from doing so. The appeal was properly taken, and the motion to dismiss must be denied.

The merits of the order were not discussed upon the hearing in this case. The main question presented on the appeal from the order in this case was disposed of by this court in the case of Kaehler v. Dobberpuhl, 56 Wis., 497. In that case it was expressly held that “ a court may, in vindication of its injunctional order, punish a party for a wilful violation thereof, notwithstanding such order ought not to have been granted, but it may not, in such case, order the party disobeying the same to pay any sum as indemnity to the opposite party.” On an appeal from the injunctional order granted in the case of Kaehler v. Dobberpuhl, Town Treasurer, et al., and for a violation of which proceedings were taken against Dobberpuhl and the present appellants 'for contemptj it was held by this court that the injunctional order was improvidently issued, and it was reversed by this court. See Kaehler v. Dobberpuhl, etc., 56 Wis., 480.

There is sufficient in the record in this case to show that *44the contempt for which the appellants were adjudged guilty was a violation of the injunctional order made in said action of Kaehler v. Dobberpuhl, etc., which was reversed by this court on the appeal in that case for the reasons stated above. We must hold, therefore, as we did on the appeal from the order adjudging Dobberpuhl guilty of a contempt for violating such order, that the court was not authorized to direct the defendants to pay any sums as an indemnity to the plaintiff. This court having determined that the injunctional order should not have been issued, as said in the case above cited, “it would be clearly inequitable and unjust to indemnify the plaintiff for the violation of an injunction which never ought to have been granted to her, and for the obtaining of which she would be liable to the defendant in damages.” The case was not one which authorized the court to indemnify the plaintiff in the action under the provisions of said secs. 3489 and 3490, R. S. Although the proceedings against the appellants were under said ch. 150, and were evidently carried on with the intent to charge them under the sections above cited, the circuit court would undoubtedly have the power, under such proceedings, to punish them for a criminal contempt by imposing a fine, or by imprisonment, or both, if found guilty of the contempt charged against them. Upon the return of the record in this case, the circuit court may, in its discretion, upon notice to the appellants, and upon the proofs already taken in these proceedings, and such other proofs as may be offered by the respective parties, determine whether such appellants should be punished by fine or imprisonment, or both, for the misconduct charged against them.

By the Court.— The order of the circuit court is reversed, and the cause remanded for further proceedings according to law.