Verbeck v. Scott

| Wis. | Feb 28, 1888

Cassoday, J.

The application for this preliminary injunction was undoubtedly addressed to the sound discretion of the trial court under the facts and circumstances alleged in the complaint and supported by affidavits. Upon such hearing the defendant Scott controverted, and in fact disproved, many of such allegations; and alleged others as stated. The court, in the exercise of such discretion, refused to restrain Scott from disposing of his bonds; and we are now asked upon the whole record, a brief summary of which is given above, to reverse that part of the order. After a careful examination of the record we are unable to say that such discretion has been abused. The plaintiff brings this suit as a resident freeholder and tax-payer of the town issuing the bonds. The burden was upon him to allege facts calling for equitable interference to prevent irreparable injury. It seems to us that the complaint, with the allegations therein disproved, as stated, does not come up to this requirement. It does not clearly appear that the railroad company did not comply with the proposition submitted in 1870, so far as Menasha was concerned. It does not clearly appear that the particular bonds in question were issued in violation of any injunction. It does pretty clearly appear that the railroad stock received in consideration for such bonds was used by the town and city of Me-nasha, or one of them with the consent of the other, many years ago, in taking up and settling all of the bonds so issued, except those owned by Scott. It does not clearly appear that the sixteen bonds in question were never owned' by a bona fide purchaser for a full and valuable consideration paid therefor. If they were ever owned by such purchaser, and subsequently were transferred to Scott, then he would be such bona fide purchaser, notwithstanding any prior knowledge on his part. It does not clearly appear that the compromise and settlement agreed upon by Scott and the officers of the town in May, 1881, was not honestly made and in good faith submitted to the qualified electors of the town at a special town meeting therefor, June 6, 1887, and in good faith ratified and agreed to by a majority of the votes cast at that election. The mere fact that a considerable number of such qualified electors failed to vote thereon did not vitiate the election. Under the circumstances stated we are unwilling to disturb the action of the trial court.

By the Oourt.— That part of the order of the circuit court appealed from is affirmed.