Sobey v. Thomas

37 Wis. 568 | Wis. | 1875

RyaN, O. J.

The action below is for damages for continuing trespass. An injunction was prayed on the ground of the insolvency of the respondents; and a temporary injunction was allowed.

An order was afterward made dissolving the injunction, upon condition that the respondents should give an undertaking with sureties to secure the appellants ; the injunction to be dissolved from the filing of the undertaking. The respondents gave the undertaking accordingly; and the injunction stood dissolved by the terms of the order.

After the undertaking had been given, another order was made, again dissolving the injunction, unless the appellants would consent to submit the controversy ' to arbitration under ch. 131, R. S. ; the award to be’ regarded as the judgment of the court below ; and the parties to waive their right of excepting to the award and of appealing from the judgment of the court below thereon, except for partiality or corruption of the arbitrators.

Both parties undertook to comply with this order ; but the arbitration appears to have fallen through. Then the respondents, on affidavits imputing the failure of the arbitration to the appellants, and on that ground only, moved to dissolve the injunction once more; and the court below, on that ground and on the merits, made an order again dissolving the injunction, and also releasing and discharging the undertaking. The appeal is from this last order.

It has perhaps never been decided how many times injunctions will bear dissolution, probably because courts are generally content with dissolving them once, without further experiment on their vitality. And, had the order before us not gone beyond the motion made, in annulling the undertaking, it might have been too harmless for appeal or reversal.

The undertaking is a mere indemnity to the appellants, of no^ moment to the respondents, if, as the learned judge of the court below seems to have thought, the appellants have no cause of action against them. And we cannot hold that the court be-' low was authorized to release it, upon the learned judge’s impressions of an intermediate trial of the cause, which seems to have produced no other result, when the parties did not move for it and put the motion which they did make on other grounds. The order must rest on the failure to arbitrate. j

It is remarkable that both parties submitted to the conditional order to arbitrate, which, so far as appears by the record, was sought by neither, but imposed upon both by the court below.. Undoubtedly a circuit court may well suggest arbitration to parties litigant before it; but it cannot impose it as a condition of justice. The laws of the state open the circuit courts to litigants, without discretion of the circuit judges. The same laws give the right of appeal from the circuit to this court; and a circuit court is outside of its duty and beyond its power when it seeks to evade that right, or to drive parties to relinquish it, as a condition of its orders or process or by any other device, upon whatever ground or pretense. The order imposing arbitration and waiver of appeal, as conditions of not dissolving the injunction, is before us so far as failure to comply with it is ground for the order appealed from. And we must say that we consider it to have been unwarrantable, if not ultra vires.

So far as the injunction is concerned, it was already dissolved. So far as the undertaking is concerned, it was not before the court below on the motion ; and had it been, a failure to comply with the unjudicial conditions of the previous order would not justify its release. It was given to the appellants, under the order of the court below, by the respondents, as a substitute for solvency of the respondents ; and, for all that is before us, must abide the result of the action. The merits of the injunctional order itself are not before us on this appeal.

By the Court— The order of the court below is reversed.