Opinion
November 4, 1959 —
December 1, 1959.
APPEALS from parts of an order of the circuit court for Waukesha county: HERBERT A. BUNDE, Circuit Judge of the Seventh circuit, Presiding. Appeal from parts of the order is dismissed; another part is reversed; the remainder of the order is affirmed.
For the plaintiff there were briefs by Lamfrom Peck, attorneys, and Leon B. Lamfrom and Jacob L. Bernheim of counsel, all of Milwaukee, and oral argument by Leon B. Lamfrom.
For the defendants there was a brief by Goldberg, Previant Cooper, and oral argument by David L. Uelmen, all of Milwaukee.
The proceeding is brought by defendants' motion to dissolve or modify a judgment first entered in November, 1954, and reinstated in September, 1955, enjoining defendants from picketing plaintiff's premises and construction sites. The trial court denied defendants' motions for immediate relief but granted defendants' motion for a new trial. Plaintiff appealed from the part of the order granting the new trial. Defendants appeal from the parts of the order denying their other motions.
The parties agree on this statement of facts:
"The Plaintiff-appellant, Condura Construction Company, engages in the construction and general contracting business in the town of Oconomowoc, Waukesha county, state of Wisconsin. On July 29, 1954, it commenced an action in the circuit court for Waukesha county seeking to enjoin defendants-respondents from picketing plaintiff's business establishment and construction sites. The circuit court, initially, had issued an ex parte restraining order and, after a hearing held on August 2, 1954, it issued its written opinion and granted a temporary injunction.
"The instant action had been commenced simultaneously with, and is a companion case to, Vogt, Inc., v. International Brotherhood of Teamsters, Local 695, 270 Wis. 315, and 321a, affirmed, 354 U.S. 284. The cases were heard at the same time and the opinion issued by the trial court applied to both cases.
"On November 8, 1954, the parties herein stipulated that the record thus far made under the pleadings and affidavits and at the hearing on the temporary injunction contained all of the facts and evidence that would be adduced upon a trial on the merits, and that the court could consider such record as the record upon which the court might enter such order and final judgment as it might deem proper. Whereupon, on November 9, 1954, the trial court issued its final judgment and order for a permanent injunction in the instant case.
"In the meantime, the companion Vogt Case was appealed to this court. In its first opinion in that case, 270 Wis. 315, this court reversed the trial court, basing its decision upon Waukesha v. Plumbers Local 75, 270 Wis. 322.
"On the basis of this court's first opinion in the Vogt Case, the defendants, here, moved the trial court to vacate the judgment in the case at bar and, on September 1, 1955, the trial court did vacate such judgment and dissolved the injunction, on the authority of the first opinion in Vogt, 270 Wis. 315 and Waukesha v. Plumbers Local 75, supra.
"Thereafter, the plaintiff appealed the order vacating the judgment to this court. While such appeal was pending, this court, on rehearing, issued its second decision in the Vogt Case, 270 Wis. 321a, basing its decision upon sec. 111.06 (2) (b), Wis. Stats. The defendants in the Vogt Case then petitioned the supreme court of the United States for certiorari.
"While the Vogt appeal was pending before the United States supreme court, the parties in the case at bar, on March 19, 1956, stipulated that the instant case might be removed from this court's calendar and, further, stipulated on April 19, 1956, that the appeal in this case pending before this court (on the question of the propriety of the dissolution of the injunction) might be dismissed. On May 1, 1956, this court did dismiss such appeal `by stipulation.'
"After the record in this case had been remitted to the trial court, the parties, on May 15, 1956, entered into a stipulation providing for reinstatement of the judgment and permanent injunction vacated on September 1, 1955, but adding thereto an additional paragraph (d) and providing `that the execution of this stipulation shall not be construed as creating a waiver of such rights as either party may have to institute further proceedings with respect to this judgment.' The judgment and permanent injunction were thereupon reinstated by the trial court.
"Subsequently, on June 17, 1957, the United States supreme court affirmed the decision of this court (2d opinion) in the Vogt Case, 354 U.S. 284.
"The latest phase of this case began when defendants, on April 8, 1958, filed a motion with the trial court by which these separate and alternative forms of relief were sought:
"1. Dissolution of the injunction and dismissal of the action.
"2. Vacating the injunction and judgment and granting a new trial in the interests of justice.
"3. Modifying the injunction to permit picketing at construction sites of plaintiff when a labor dispute exists involving subcontractors working on such construction sites.
"At the same time, defendants sought to examine adversely, under sec. 326.12, Wis. Stats., plaintiff's president, Lawrence Vogt, who was also served with a subpoena duces tecum requiring the production of numerous records.
"Plaintiff thereupon filed a motion to restrain the adverse examination of Lawrence Vogt and to quash the subpoena duces tecum.
"A hearing was had on these motions, on June 2, 1958, and the trial court issued its written memorandum decision on January 2, 1959. Plaintiff's motion to restrain the adverse examination of Lawrence Vogt and to quash the subpoena was granted. The court below, furthermore, granted so much of defendants' motion as sought a new trial in the interests of justice, but denied defendants' motion in all other respects. An appropriate order was entered on February 20, 1959.
"It is from so much of the trial court's order as directs a new trial in the interests of justice that this appeal is being taken by plaintiff. Defendants, in turn, have taken a cross appeal from the remainder of the trial court's order of February 20, 1959."
The order from which the parties appeal is:
"It is hereby ordered,
"1. That defendants' motion to dissolve the injunction and to dismiss the action is denied.
"2. That defendants' motion to modify injunction to permit picketing at the construction site under certain circumstances is denied.
"3. That so much of defendants' motion as seeks to vacate the injunction is hereby denied, but that part of said motion as seeks a new trial in the interests of justice is hereby granted for the reasons stated in the court's memorandum decision issued on January 2, 1959.
"4. That the plaintiff's motion to restrain the adverse examination of Lawrence Vogt is hereby granted; and
"5. That the plaintiff's motion to quash the subpoena duces tecum heretofore served upon Lawrence Vogt is hereby granted."
In the time which has passed since the judgment of the trial court first restrained defendants' conduct, the supreme court of the United States has determined that the congress of the United States completely pre-empted the field of labor relations affecting interstate commerce, thus denying to the states all jurisdiction over such matters and has confided the regulation of such matters to the national labor relations board. Guss v. Utah Labor Board (1957), 353 U.S. 1, 77 Sup. Ct. 598, 1 L.Ed.2d 601.
The injunction contained in the judgment obtained by the plaintiff against the defendants was a permanent injunction. However, permanent injunctions are not irrevocable. They are permanent so long as the conditions which produce the injunction remain permanent. 28 Am. Jur., Injunctions, p. 830, sec. 316, states the rule thus:
"With regard to the causes or occasions which may call for the modification or suspension of a permanent injunction, the rule seems to be that the court, in its discretion, may always permit or order such modification or suspension where it believes the ends of justice will be thereby served. Where the grounds and reasons for which the injunction was granted no longer exist, by reason of changed conditions, it may be necessary to alter the decree to adapt it to such changed conditions, or to set it aside altogether, as where there is a change in the controlling facts on which the injunction rests, or where the applicable law, common or statutory, has in the meantime been changed, modified, or extended. Such change in the law does not deprive the complainant of any vested right in the injunction because no such vested right exists. On application to modify the decree, the inquiry is simply whether changes since its rendition are of sufficient importance to warrant such modification. However, the injunction, whether right or wrong, cannot on such a hearing be impeached in its application to the conditions that existed at its making."
And, id., pp. 832, 833, sec. 319:
"But in so far as the final decree is executory in effect, the court which entered it has inherent power to modify or vacate the injunction to conform to a change of conditions occurring after it was awarded."
In support of their motion to dissolve or modify the injunction, defendants filed an affidavit alleging that the facts upon which the injunction was granted now no longer exist, for the plaintiff's business has so changed that it now does affect interstate commerce and, also, the law upon which the injunction depended has changed in that it no longer permits the state to exercise any jurisdiction over the subject of picketing in an industry which affects interstate commerce, as determined by Guss v. Utah Labor Board, supra, Amalgamated Meat Cutters v. Fairlawn Meats (1957), 353 U.S. 20, 77 Sup. Ct. 604, 1 L.Ed.2d 613, and San Diego Unions v. Garmon(1957), 353 U.S. 26, 77 Sup. Ct. 607, 1 L.Ed.2d 618.
The trial court has the inherent power of inquiry to ascertain whether present conditions of fact or law, or both, permit or require the court to continue the executory effect of the injunction or to make appropriate modifications in it. A party to the action who is adversely affected by the injunction may initiate inquiry by a petition to the court or by a motion with supporting affidavits showing to the court the changes in the conditions upon which the moving party relies. The motion to the trial court here is sufficient to bring these matters to the court's attention.
But until the changes in facts and law alleged by defendants have been proved to the satisfaction of the court and the effect of such changes is what the defendants claim for them, it is not error for the trial court to deny the defendants' motion to dissolve or modify the injunction.
Sec. 274.33 (3), Stats., declares an order appealable to the supreme court when the order grants, refuses, modifies, or dissolves an injunction. These parts of the order from which defendants appeal neither grant an injunction nor refuse to grant it, nor do they modify or dissolve an injunction. The statute does not make appealable an order which only refuses to modify or dissolve an injunction which is what the court did. Nor is this order a final one. Therefore, we conclude that paragraphs 1 and 2 of the order are not appealable nor is that part of paragraph 3 which denies vacation of the injunction.
In the remainder of paragraph 3 of the order, the order purports to grant a new trial in the interests of justice for reasons given in the court's memorandum of January 2, 1959. These are as follows:
"There should be no modification of the present injunction unless the defendants, after a full and complete trial of the issues, justify such modifications. The consequences of modification at this time might nullify the purpose of the original injunction before an adjudication to determine whether or not there should be such modification. Factual contentions presented by either party to the action in the briefs may or may not be supported by the evidence and there should be no finding upon such allegations of fact unless they are based upon evidence."
Sec. 274.33 (3), Stats., makes appealable an order granting a new trial. This order in its terms specifically purports to grant a new trial and, as such, we are compelled to reverse the order as an abuse of discretion. New trials are granted to rectify, or give opportunity to rectify, errors in preceding trials. It is evident that there are no such errors. This court and the United States supreme court affirmed the judgment in Vogt, Inc., v. International Brotherhood (1955, 1956), 270 Wis. 315, 71 N.W.2d 359, 74 N.W.2d 749, and 354 U.S. 284, 77 Sup. Ct. 1166, 1 L.Ed.2d 1347, thus governing the case at bar. There is nothing, then, the matter with the first trial or the judgment pronounced therein. No new trial can be ordered upon it.
But we think that the language used by the trial court incorrectly expressed its meaning, for the memorandum decision, to which the order refers, directed inquiry into facts which did not exist at the time of the original trial and the judgment thereon. In substance the trial court really ordered an inquiry into current conditions. So construed the order is not one for a "new trial" and does not qualify as an appealable order under sec. 274.33 (3), Stats., but it is none the less valid as an order within the inherent power of the court permitting the parties to show whether or not present conditions have so changed that the injunction should be continued, modified, or dissolved. But that valid order is not an appealable one. In so far as the language of the court is taken literally, the order granting a new trial is reversed, the order is construed as directing inquiry into the alleged new conditions and the appeal from it is dismissed as an unappealable order.
Paragraphs 4 and 5 of the order restrain defendants from examining adversely Lawrence Vogt, an officer of plaintiff corporation, under subpoena duces tecum. An order which merely limits the scope of an examination noticed under sec. 326.12, Stats., is not appealable. Will of Block (1953), 264 Wis. 471, 59 N.W.2d 440; but an order which completely suppresses such an examination, as this one does, is an appealable order. Estate of Briese (1941), 238 Wis. 6, 298 N.W. 57.
While the order is an appealable one, we affirm the order suppressing the examination and quashing the subpoena for the reason stated by plaintiff's counsel, which we quote:
"Sec. 326.12 (1), Wis. Stats., permits an adverse examination only ` before final determination' of a civil action or proceeding. Sec. 270.53 (1), Wis. Stats., declares a `judgment' to be a `final determination.' Since, here, a final judgment has long since been entered, i.e., a `final determination' was had, an adverse examination under sec. 326.12 is not permissible and the trial court was plainly right in granting appellant's motion."
To recapitulate our conclusions, the appeals from the order in paragraph 1 and paragraph 2 are dismissed. The order granting a new trial is reversed. That order is modified to be one directing inquiry into an alleged change in the controlling facts upon which the injunction rests. As such the order is not appealable. That part of the order in paragraphs 4 and 5 appealed from is affirmed. By the Court. — Appeal dismissed as to paragraphs 1 and 2. That part of paragraph 3 of the order which purports to grant a new trial is reversed, and the order modified as stated in the opinion. That part of the order in paragraphs 4 and 5 appealed from is affirmed. Appellant shall have costs in this court.