Opinion
November 9, 1940 —
January 7, 1941.
APPEAL from a judgment of the circuit court for Milwaukee county: JOHN C. KLECZKA, Circuit Judge. Reversed.
The cause was submitted for the appellant on the brief of Galin Jacobson of Milwaukee, and for the respondent on that of Fred M. Wylie of Madison.
On or about the 21st day of March, 1940, the state of Wisconsin, as plaintiff began an action against Edgar Neveau, defendant, seeking to enjoin the defendant from operating his barbershop without first procuring the license required by sec. 100.205, Stats. Judgment was entered on September 3, 1940, dismissing the plaintiff's complaint on the ground that the law and the code issued pursuant thereto were void. From that judgment the plaintiff appealed to this court where the judgment was affirmed on November 20, 1940. See State v. Neveau, 237 Wis. 85, 294 N.W. 796.
On April 5, 1940, the court upon due notice and hearing, entered the following order:
"It is ordered that pending this action and until further order the defendant Edgar Neveau be and he is restrained from operating a barbershop at 2917 West North avenue in the city of Milwaukee or elsewhere in code area, without the license required by section 100.205 of the statutes, unless he shall deposit with the clerk of this court the license fee, in the sum of $17.50, on or before April 11, 1940.
"It is ordered further that pending this action and until further order, the defendant, Edgar Neveau, be and is restrained from violating any other provision of section 100.205 of the statutes or of the trade practice standards for the barber trade issued under said section and in effect, unless he shall file with the clerk of this court an agreement to stipulated damages in the amount of $90, bearing the indorsed approval of the trade practice examiner as to form; and unless he shall deposit with the clerk of this court two thirds of said damages on or before April 18, and the balance on or before April 25. . . ."
By order of the court dated September 27, 1940, the defendant was ordered to show cause why he should not be found to have disobeyed the restraining order of April 5, 1940, and be punished for contempt. The order to show cause was brought on for hearing. The defendant demurred to the petition, the matter was brought on for hearing and on November 7, 1940, the following judgment was entered:
"It is, therefore, adjudged, that the defendant is in contempt of this court and that a sufficient sum shall be paid by the defendant to the plaintiff to satisfy plaintiff's costs and expenses, such sum to be established by agreement of the parties or by this court upon proof."
From the judgment the defendant appealed to this court.
The principal question argued in this case is whether the injunction pendente lite was merged in the judgment, and if so, whether the appeal by the plaintiff stayed the judgment and continued the preliminary injunction pending the appeal. While there is some conflict of authority, the better rule is that a proceeding as for a civil contempt for the violation of a preliminary injunction after the same has been merged and dissolved by judgment in the principal action cannot be maintained for violation prior to its dissolution. Canavan v. Canavan (1914), 18 N.M. 640, 139 P. 154, 51 L.R.A. (N.S.) 972, note and cases cited. See also Berthold-Jennings L. Co. v. St. Louis I. M. S. R. Co. (8th. Cir. 1935) 80 F.2d 32, 102 A.L.R. 688, 701. The rule would seem to apply with especial force in this case because here after the merits were litigated, plaintiff's prayer for a permanent injunction was denied upon the merits. By the preliminary injunction the defendant was restrained in the manner specified "until further order." The authorities seem with practical uniformity to hold that "until further order" means further action by the court in the premises including entry of the final judgment. Inasmuch as the final judgment dismissed the action we see no escape from the conclusion that the preliminary injunction was merged and the matter disposed of. It does not appear from the allegations of the petition, upon which the motion for punishment for contempt was made, when the violation of the preliminary injunction took place. For that reason we do not have the question of whether a violation of the injunction prior to the time of its dissolution will be punished after its dissolution. See Canavan v. Canavan, supra, 51 L.R.A. (N.S.) 972, and note.
It is argued here on behalf of the state that the state having taken an appeal from the judgment in the main action, the appeal operated to stay the judgment under the provisions of sec. 274.26, Stats., leaving the preliminary injunction in force.
The record in this court is not complete. Apparently what happened was that, after entry of judgment in the circuit court and pending the appeal by the plaintiff, the defendant operated his shop in violation of the terms of the preliminary injunction whereupon this proceeding was begun to punish the defendant as for a civil contempt.
There is considerable conflict of authority as to when an action terminates depending somewhat upon the angle from which the question is approached. In some jurisdictions it is held that the rendition of a judgment terminates the action while in others the action is not regarded as terminated until the judgment is satisfied. It is considered that the correct rule is stated in Tichenor v. Collins (1883), 45 N. J. Law, 123, 124, where the court said:
"Now the technical legal termination of an action is the judgment. All subsequent writs, whether of execution or scire facias, are new procedures, although founded upon the judgment. A suit till judgment is property called an action, but not after." See also Iowa Savings Loan Asso. v. Chase (1902), 118 Iowa, 51, 91 N.W. 807.
See also 1 C.J.S. p. 1421, § 143, and cases cited, 1 C.J. p. 1170, § 447, and cases cited. Judgment having been entered, the preliminary injunction expired by its own terms.
It may be argued in response to this holding that such a rule permits a person to perform an act forbidden by legislative enactment before the time when its validity is finally determined by an appellate court. No doubt the trial court has jurisdiction to continue the preliminary injunction pending the appeal. The situation, however, after the trial court has entered judgment holding a legislative act invalid is so fundamentally different from the situation which obtained prior to that time that continuance of the injunction is a matter which should be reconsidered by the trial court when judgment is entered. No injunction being in force under the facts of this case, the trial court was in error in punishing the defendant for an act committed in violation of the preliminary injunction after the entry of judgment.
By the Court. — The judgment appealed from is reversed, and the cause remanded with directions to dismiss the petition.