Fassbender v. Peters

191 N.W. 973, 179 Wis. 587, 1923 Wisc. LEXIS 40

• Court: Wisconsin Supreme Court
• Decided: February 6, 1923
• Status: Published

Opinion

Vinje, C. J.

It is a well known doctrine that the granting or refusing of an injunction pendente lite is a matter within the sound discretion of the trial court and that its order, will not be reversed unless an abuse of discretion is shown. Valley I. W. Mfg. Co. v. Goodrick, 103 Wis. 436, 444, 78 N. W. 1096. It is also a general rule , that the status quo will be preserved where there is an unqualified denial of plaintiff’s right. Milwaukee E. R. & L. Co. v. Bradley, 108 Wis. 467, 84 N. W. 870. But the rule is subject to many exceptions. Probable insolvency of defendant, irreparable loss to plaintiff pendente lite, or full indemnity to defendant for any damage he may sustain during the suit, coupled with probable injurious consequences to plaintiff if injunction is not granted, are examples of exceptions. It is not the theory of the law that upon the’application for an injunction pendente lite or for the vacation thereof the parties should try the merits of the case upon affidavits. In the present case the trial court was of the opinion that the rights could best be protected by a continuance of the injunction. The defendant was protected against damage by the bond of plaintiff if he could establish his claimed right to drain the deposits upon plaintiff’s land. In the meantime, it was shown, the construction of a temporary-septic tank was not very expensive, and that by means of it the use of his creamery was not impaired and plaintiff would have the use of his spring. We observe no abuse of judicial discretion in so disposing of the matter. The rights of both parties were safeguarded without hardship to either. The plaintiff does not complain because he has to give a bond of $1,000 and defendant does not claim it is inadequate. Under such circumstances a temporary injunction is properly continued. Milwaukee E. R. & L. Co. v. Bradley, 108 Wis. 467, 84 N. W. 870; DePauw v. Oxley, 122 Wis. 656, 100 N. W. 1028; Eau Claire Dells Imp. Co. v. Eau Claire, 134 Wis. 548, 559, 115 N. W. 155; 14 Ruling Case Law, 357.

By the Court. — Order affirmed.