99 Wis. 201 | Wis. | 1898
It is well settled that an interlocutory injunction is liable to be dissolved upon sufficient cause shown at any stage of the proceedings after the coming in of the answer. “ And, in general, it may be said to rest in the sound discretion of the court to dissolve such an injunction upon the coming in of the answer denying the equities of the bill, or to continue it to a hearing upon the merits, if such a course shall seem best calculated to serve the ends of justice, and to protect the rights of all parties. A dissolution of an injunction after answer filed being, therefore, largely a matter of judicial discretion, appellate courts are averse to interfering with the exercise of such discretion.” In some of the states it has been broadly laid down that an interlocutory or preliminary injunction may be dissolved at any stage of the cause, either before or after answer filed, or after demurrer to the bill; while in others the rule prevails that a motion- to dissolve will not be entertained until after the coming in of the answer,— founded upon the ground, doubtless, that the plaintiff is entitled to the discovery which the answer may afford in support of the equity of the bill. High,
In the present case it is objected that it was error for the court to entertain and grant, as it did, the motion to vacate the injunction before the defendant city had answered. Like objection is made that the court erroneously compelled' the plaintiff to go to the hearing of the motion to dissolve before the plaintiff could examine the defendant Sohneidt as an adverse party, so that his examination could be used upon the hearing of the motion; but as the plaintiff’s counsel stated that he did not desire to use such examination on the question of nuisance or no nuisance, but on the question merely whether the security given by the plaintiff on the' injunction should be increased, the court required the hearing on the motion to proceed; stating that, if of opinion that the injunction should be retained, plaintiff might thereafter use such examination of the defendant Sohneidt on the matter of the sufficiency of the security. This was a proper exercise of discretion, and there is nothing to show that the plaintiff was injured by it, or by having the motion to vacate heard before the defendant city had answered. The formal answer of the city under its corporate seal would be of little or no avail as a matter of discovery, and the answer of the defendant Sohneidt, the only natural person defendant, is quite full, and seems to cover the entire case. We cannot see that the plaintiff has been prejudiced in the least by bringing to a hearing the motion to dissolve the'injunction before the defendant city had answered.
The authorities show that whether a motion to vacate an injunction may be heard before every defendant has an
The action was brought to obtain a perpetual injunction against the defendants for the maintenance of a public nuisance, alleged to be especially injurious to the plaintiff. The entire equity of the case depends upon the question of nuisance. It is contended by the plaintiff that, as there were
Whatever criticism may be made as to the validity of this, statute, it is a sufficient answer to its application to the present case to remark that it is no part of the jurisdiction of a, court of equity to enforce bj» injunction the criminal or penal' statutes of the state, nor will it interfere for The prevention of an illegal act merely because it is illegal. In the absence-
In view of the facts presented by the record and the showing made, we cannot say that there was an abuse of judicial discretion, warranting the interference of this court on appeal from the order vacating the injunction.
By the Court.— The order vacating the injunction, appealed from, is affirmed.