McCord v. Akeley, 132 Wis. 195

132 Wis. 195 | Wis. | 1907

Lead Opinion

Kebwist, J.

The controlling question in this case is the force and effect to be given the lis pendens and order dissolving the temporary injunction in the suit of plaintiff against Hill,, commenced in March, 1897, the record of which was put in evidence upon the trial of the ease before us. The judgment in the former suit against Hill established that the plaintiff was the owner of the land and timber on and after January 12, 1897, and this judgment bound all parties claiming through Hill whose conveyances were not recorded before the filing of the Us pendens, March 15,, 1897, unless they can in some way escape the effect of sec. 3187, Stats. (1898). It is claimed, however, by appellants that the dissolution of the temporary injunction referred to in the statement of facts, and the provision in the order of dissolution to the effect that defendant Hill might cut and sell the timber on the land upon giving bond that he would pay the value of any timber cut by him in case the suit should be decided in favor of the plaintiff, and the giving of the bond operated to take the timber so cut out of the control of the court and substitute tbe bond in its place; that thereafter the bond and the land freed from the timber became the subject of the suit, hence the lis pendens was superseded as to the timber. It is further insisted by appellants that defendants, purchasers pendente lite, are assumed to hare notice of the proceedings, hence are assumed to have notice that the timber was no longer within the subject matter of the suit; that the order and bond had the effect of a relinquishment of all claim to the timber. Rut the judgment of the court, we think, is a complete answer to the appellants’ argument that the lis pendens was superseded. It determined and adjudged the title and ownership of plaintiff in the land and timber as of the date of the patent, January 12, 1897, and that Hill and all persons claiming under him be enjoined and restrained from setting up or claiming any :right, title, or interest in the lands or any interest in the timber standing or growing on the lands on January 12', 1897, or at any time thereafter. This judgment was strictly within the issues involved in the case and cannot be attacked in this action. Sec. 2882, Stats. (1898); Trustees of St. Clara F. A. v. Del. Ins. Co. 93 Wis. 57, 69, 66 N. W. 1140. The present defendants purchased after filing complaint and notice of lis pendens, hence were chargeable with and bound by the judgment, at least as to the real estate involved, as effectually as if made parties. Sec. 3187, Stats. (1898); Brown v. Cohn, 95 Wis. 90, 93, 69 N. W. 71.

The question which gave us the most trouble in the case is the effect of the order dissolving the temporary injunction and providing that defendant Hill be at liberty to cut and sell the timber upon the land. It is argued by respondent that the in junctional orders, namely,. the one obtained by plaintiff when he commenced the former action restraining the defendant, and the order continuing this until the further order of the court, as well as the order providing for dissolution of the temporary injunction on defendant giving bond, and the undertaking given by defendant Hill te pay for any timber cut by him, -were personal to plaintiff and Hill, and in no way hound defendants in this action, hut they were bound by the final judgment of the court and not affected by the temporary injunctional orders, and received no right to cut under the order of July 22, 1898, so as to affect the rights of the plaintiff under his judgment according to the demand of his complaint.

There is nothing in the record going to show that the court attempted to remove the property from the operation of the lis pendens or the final judgment of the court. The court in the final judgment adjudicated to the contrary and established the plaintiff’s right and title to the land and all timber “standing or growing thereon on January 12, 1897, or at any time thereafter.” So the record and judgment in the former action of plaintiff against Hill established the plaintiff’s right to recover for the timber cut and removed by defendants. Moreover, the office of the temporary injunction dissolving the restraining order against Hill merely left him and those claiming under him at liberty to cut at their peril and remain subject to the final judgment in the action. The temporary injunction issued is for the purpose of preserving the status quo pending the litigation. Valley I. W. Mfg. Co. v. Goodrick, 103 Wis. 436, 78 N. W. 1096. And the dissolution of the temporary restraining order in no way withdraws the property which is the subject of litigation from the operation of the judgment finally recovered. 1 High, Inj. §§ 2, 5; Ford v. Plankinton Bank, 87 Wis. 363, 58 N. W. 766; Castle v. Madison, 113 Wis. 346, 89 N. W. 156; 15 Ency. Pl. & Pr. 360; 10 id. 1010, 1011; 1 Freeman, Judgm. (4th ed.) § 325.

Point' is made by appellants that the doctrine of estoppel applies to bar the plaintiff’s right to enforce the lis pendens in favor of his property. But there are no elements of es-toppel in the case. The plaintiff was merely pursuing his legal rights in. the prosecution of his action to judgment and seeking to preserve the property pending litigation. He filed his bond to continue the injunction against Hill provided in the order, and the court by order gave Hill the right to have the injunction dissolved upon giving a bond. Plaintiff objected to the amount of the bond, but the court fixed it at $7,500. Hill complied with the order and obtained the dissolution. The fact that the order -recited- that Hill might cut and sell added nothing to it. He could do this as well without as with these words in the order. The bond was security to the plaintiff, and neither the bond nor the order affected the plaintiff’s rights in the properly. Plaintiff could not be deprived of his property by the dissolution of the temporary injunction made to preserve the property pending litigation. The final judgment bound Hill and likewise the defendants who were in privity with him in the litigation, and fixed their liability for the value of the property removed by them during the pendency of the action against Hill. Grunert v. Spalding, 104 Wis. 197, 218, 80 N. W. 589; Hart v. Moulton, 104 Wis. 349, 80 N. W. 599; Rowell v. Smith, 123 Wis. 510, 102 N. W. 1.

We think the judgment of the court below was right and should be affirmed.

By the Court. — The judgment of the court below is affirmed.

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Dissenting Opinion

Timlin, J.

(dissenting). The order dissolving the temporary injunction and permitting the defendant Hill “to cut and sell any or all of the timber upon said land or otherwise dispose of the same as he may see fit, upon filing in this court an undertaking with sufficient sureties, to be approved by the judge of this court, in the sum of seven thousand five hundred dollars ($7,500), conditioned,” etc., was dated July 22, 1898. The sale of the timber to Akeley and Sprague under this permission and after the undertaking was given was on February 13, 1900. Tbe final judgment in the action of McCord against Hill was July 10, 1902. The timber was sold, cut, and removed in the meantime.

Akeley and Sprague are held by the majority opinion as trespassers, and judgment in tort goes against .them for $10,700 with four years’ interest, because they purchased under this order or permission and took away the timber so purchased. The order dissolving the temporary injunction on this condition was an appealable order, but the plaintiff took no appeal therefrom. The decision holding the purchasers Akeley and Sprague liable as trespassers for doing that which the court permitted them to do seems to me to be neither good law nor good morals. The -attempt is made to justify it because the same court in its final judgment in the same cause has repudiated or ignored its order of July 22, 1898, and the contract obligations growing out of and based upon the same. I think the whole record, including the order of July 22, 1898, the bond given by the defendant thereunder, and the sale, should be considered together with the final decree. The practice of vacating a temporary injunction upon the defendant giving bond is somewhat novel, although it is said the jurisdiction of equity in this respect is fairly well established. 2 High, Inj. (4th ed.) §§ 1497, 1498; Northern Pac. P. Co. v. St. Paul, M. & M. R. Co. 4 Fed. 688, and cases in Shepard’s Annotations; Sobey v. Thomas, 37 Wis. 568. It is said in State ex rel. Bell v. Houston, 36 La. Ann. 886, that dissolution of an injunction on bond amounts to authority to do the prohibited act. See, also, State ex rel. Yale v. Duffel, 41 La. Ann. 516, 6 South. 512. The time at my disposal will not permit me to thoroughly investigate this question. The nearest analogy in law to this injunction bond which occurs to me is the redelivery bond in replevin. In that action the title to property is in question, but the redelivery bond authorizes the person giving it to sell the property and the purchaser from him gets a good title. Stewart v. Wolf (Pa.) 7 Atl. 165, and cases; Rockey v. Burkhalter, 68 Pa. St. 221; Briggs I. Co. v. North Adams I. Co. 12 Cush. 114.

MaRshall, J., took no part