Milwaukee v. Marchese Brothers, Inc.

Full title: CITY OF MILWAUKEE, Appellant, v. MARCHESE BROTHERS, INC., and others…

Court: Supreme Court of Wisconsin

Date published: Nov 28, 1972

202 N.W.2d 23 (Wis. 1972)

202 N.W.2d 23

Opinion

No. 222.

Argued October 31, 1972. —

Decided November 28, 1972.

APPEAL from an order of the circuit court for Milwaukee county: HARVEY L. NEELEN, Circuit Judge. Set aside and prior temporary injunction reinstated.

For the appellant there were briefs, one by John J. Fleming, city attorney, and one by James B. Brennan, successor city attorney, and on both briefs Richard F. Maruszewski, Maurice L. Markey, and Grant F. Langley, assistant city attorneys, and oral argument by Mr. Markey and Mr. Langley.

For the respondent Rasche, Schroeder, Spransy Associates, Ltd., there was a brief by Burke Schoetz, attorneys, and Charles F. Schroeder of counsel, all of Milwaukee, and oral argument by Mr. Schroeder.

PER CURIAM.

The appeal is from an order vacating a temporary injunction and from an order denying a motion permanently to enjoin the foreclosure of a mechanics lien for architectural services.

The record reveals that this appeal concerns but one of a number of pending actions arising out of substantially the same set of facts. At oral argument counsel agreed that the merits of this appeal could not be determined until such time as the underlying actions, particularly a pending action to determine title, were resolved. It appears, therefore, that the injunction prayed for was primarily to preserve the status quo during the pendency of the other actions.

By separate order dated November 17, 1972, in the exercise of our superintending jurisdiction, we have directed that the following pending related cases be assigned to Circuit Judge HARVEY L. NEELEN for appropriate disposition:

Case No. Marchese Bros. Inc. v. City of Milwaukee, et al. 363-043 City of Milwaukee v. Milwaukee Civic Development, Inc. 366-032 Milwaukee Civic Development, Inc. v. Mathias F. Schimenz 366-555 City of Milwaukee v. Marchese Bros. Inc. 369-466 City of Milwaukee v. Milwaukee Civic Development, Inc. 391-634

While we find that the trial judge in the instant case properly exercised his discretion in issuing the orders appealed from, we consider it appropriate in the interests of the orderly disposition of all related cases to set aside that portion of the order of the circuit court dated September 27, 1971, which revoked an earlier order for a temporary injunction dated July 31, 1970, and to set aside that portion of the order of September 27, 1971, denying the motion of the city of Milwaukee to make the temporary injunction permanent.

The temporary injunction is reinstated and is to remain in effect until such time, in the judgment of the circuit judge, related cases, both those assigned by orders of this court on November 17, 1972, or previously assigned to Circuit Judge HARVEY L. NEELEN, have been disposed of to the extent that the circuit court may proceed to the disposition of any issues raised in the instant case.

The order of the circuit court of September 27, 1971, is set aside consistent with the order of this court.