Opinion
January 9, 1946. —
February 15, 1946.
APPEAL from an order of the circuit court for Milwaukee county: JOHN C. KLECZKA, Circuit Judge. Reversed.
For the appellant there were briefs by Rubin, Zabel Ruppa, attorneys, and W. B. Rubin and W. C. Zabel of counsel, all of Milwaukee, and oral argument by Mr. Zabel and Mr. Rubin. Francis J. Hart of Milwaukee, for the respondent.
Action by Louis Simon, plaintiff, against Wisconsin Telephone Company, defendant, commenced September 13, 1945. Plaintiff alleges that at the times in question he was engaged, under the firm name of Badger News Service, in the business of receiving and disseminating news of public events and sporting events throughout the city of Milwaukee and elsewhere, at room 833, 152 West Wisconsin avenue, Milwaukee; that at the times mentioned he had subscribed to said defendant for general telephone service, and that said defendant did furnish service and install in his place of business the necessary telephone instruments and connections to enable him to receive the telephone service which the defendant corporation was organized to furnish to plaintiff and other subscribers; that plaintiff undertook to furnish and did furnish for a certain hire and reward to various and divers subscribers who applied therefor, said service; that in order to enable plaintiff to engage in said business of disseminating and distributing to his customers and subscribers the news so received by him, it was necessary that he utilize the telephone service and the telephone instruments and connections furnished and provided by defendant, and that unless he continues to receive such service from defendant and use its instruments and connections he will be unable to carry on his business and will be compelled to discontinue same and be prevented from distributing and disseminating the news service which he receives from various parts of the country to his customers and subscribers who pay him a certain hire and reward for said service.
It is further alleged that plaintiff has invested substantial sums of money in equipping his business to enable him to operate and conduct the service which he obligated himself to furnish to his customers and subscribers; that he has entered into contracts with numerous and divers persons to furnish them with the services of his business; that defendant has arbitrarily, wrongfully, and without cause or justification threatened and does now threaten to discontinue the facilities and services heretofore furnished by it. to plaintiff and his business, notwithstanding that plaintiff is in no manner indebted to said defendant for the services and facilities and connections furnished and provided to him; that he has in all respects complied with the terms and conditions of the agreement under which defendant is required to furnish its services and facilities; that in furtherance of said threat defendant caused to be served upon plaintiff a written notice that the facilities and services furnished to him will be discontinued and disconnected by it three days from date of said notice, which notice was dated September 11, 1945; that plaintiff fears that unless restrained from so doing defendant will carry out its threats and, as a result thereof, plaintiff's business will be wholly ruined; that if defendant carries out its threats he will suffer irreparable damage, the amount of which is unascertainable in an action at law; and that he has no adequate remedy at law. It is alleged that plaintiff has in all respects complied with the agreement under which defendant furnished its facilities and service.
As a second cause of action, plaintiff embodies all of the allegations above mentioned and further alleges: "That the conduct and acts of said defendant corporation will, if carried out, deprive the plaintiff of his property, to wit: His business and his earnings therefrom, without due process of law, in direct violation of article XIV of the Amendments to the United States constitution."
The prayer of the complaint is that defendant, its servants, agents, officers, and employees be enjoined and restrained from carrying out its threats and from disconnecting the facilities provided by defendant and from discontinuing its services to plaintiff, and that during the pendency of the action defendant, its servants, agents, officers, and employees be enjoined and restrained from in any manner interfering with the operation of plaintiff's business and from disconnecting the facilities and from discontinuing the services now being received by plaintiff from said defendant.
On September 13, 1945, Circuit Judge DANIEL W. SULLIVAN, upon the verified complaint, on motion of plaintiff's attorneys, made an order directing defendant to show cause before the calendar assigned judge on the 14th day of September why defendant should not be enjoined and restrained from discontinuing the services and furnishing the telephone connections theretofore furnished by said defendant to plaintiff, and from in any manner interfering with plaintiff's business during the pendency of the action. It was further ordered that defendant, its servants, agents, officers, and employees be enjoined and restrained pending hearing on the order to show cause from discontinuing telephone service and from disconnecting any and all facilities, and from in any manner disrupting the service theretofore furnished plaintiff, and from in any manner interfering with his business.
On September 14th the order to show cause came on for hearing before the branch of the circuit court presided over by Circuit Judge OTTO H. BREIDENBACH. At that time, due to the absence of plaintiff's counsel, who on said date was before this court, the matter was continued until the 18th of September, and the temporary restraining order was continued in force until said date. However, Judge BACH orally announced from the bench that the continuance was on condition that the plaintiff appear in person on the adjourned date, produce the records of his business, and submit to an examination by the defendant.
On September 18th the matter came on before the calendar branch, JOHN C. KLECZKA, circuit judge presiding. On that date the court entered an order adjourning the hearing until September 20th, and continuing the temporary restraining order in force until that time. That order provided that "at said time the plaintiff appear in person in open court with the records of his business to be examined relative to the matters alleged in his complaint." A copy of this order was personally served on the plaintiff and his attorneys.
On September 19th Judge KLECZKA made an order directing defendant to show cause before the branch of said court presided over by him on the 20th day of September why the order made and entered on September 18th should not be set aside and held for naught for the reason that same was erroneously entered.
On September 20th the matter again came on for hearing before Judge KLECZKA. This time there were two orders to show cause to be heard, the order of September 18th and the order of September 19th. At the hearing on September 20th defendant's counsel filed the following motion: ". . . upon all the records, files and proceedings herein and particularly upon the allegations of the complaint herein moves the court for an order dissolving the temporary restraining order heretofore made herein on the 13th day of September, 1945."
Plaintiff's counsel moved that the order theretofore entered directing plaintiff to appear in person and produce the records of his business and submit to an examination by defendant be set aside for want of jurisdiction and power in the court to so direct. Up to this time defendant had served no pleading, affidavit, or other document taking issue with the allegations of the complaint.
On September 25th the court entered an order setting aside and dissolving the temporary restraining order entered on September 13th by Judge SULLIVAN. This appeal is from that order.
The action is in equity to enjoin the defendant Telephone Company from discontinuing, as it threatens to do, its service to the plaintiff, who alleges necessity for such service in the conduct of his news collecting and disseminating agency. The action is based upon threatened violations of defendant's duty, pursuant to sec. 175.06, Stats., which requires it to furnish its services upon payment of the customary charges therefor, to all persons "without unreasonable delay or without discrimination" and "without regard to the character of the messages to be transmitted, provided they are not obscene or profane." The complaint negatives the doing or omitting of any of the things which, under the statute, excuses the defendant from supplying service to him.
Upon service of the summons and complaint the plaintiff moved for an injunction pendente lite, restraining the defendant from discontinuing its services, and upon the complaint procured an order to show cause why such injunction should not issue, and which restrained the defendant from discontinuing service until the return day of the order.
On the return day, a continuance being requested by the plaintiff, the court, by oral pronouncement from the bench, continued the hearing to a day certain, and continued the restraining order in force until the day certain specified, "conditioned that the plaintiff appear in court in person at said time with the records of his business to submit to examination by the defendant."
The record contains no answer, nor does it contain any affidavits or any evidence whatsoever as to any reason for the condition on which the restraining order was to continue in force.
On the adjourned date plaintiff did not appear to submit to examination, and the court then signed a written order reciting that the previous order not having been reduced to writing the hearing was adjourned to a later date, that the restraining order be continued to that day, and that "at said time the plaintiff appear in person in open court with the records of his business to be examined relative to the matters alleged in his complaint."
At the last adjourned date, plaintiff having failed to appear in person, produce the records of his business, and submit to an examination by defendant, the court dissolved the temporary restraining order.
The complaint states a cause of action for the equitable relief demanded. There is no answer or denial of its allegations.
Sec. 268.02 (1), Stats., provides:
"When it appears from his pleading that a party is entitled to judgment and any part thereof consists in restraining some act, the commission or continuance of which during the litigation would injure him, or when during the litigation it shall appear that a party is doing or threatens or is about to do, or is procuring or suffering some act to be done in violation of the rights of another party and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act."
Sec. 268.08, Stats., provides:
"The court or judge may, before granting the injunction, make an order requiring cause to be shown why the injunction should not be granted, and the defendant may in the meantime be restrained."
The plaintiff contends that under sec. 175.06, Stats., and the above statutes, it was the positive duty of the court, under the undisputed allegations of the complaint, to continue the restraining order in force until the allegations of the complaint should in some way, by answer or affidavits, be controverted or denied; that the dissolution of the restraining order was an abuse of discretion and a denial of due process.
The defendant claims that the restraining order having been issued ex parte by a judge at chambers, it might be vacated ex parte by the judge who made it, sec. 269.28, Stats. This section provides:
"An order made out of court without notice may be vacated or modified without notice by the judge who made it. . . ."
This section is not applicable. The order was made by Judge SULLIVAN, and he did not vacate it.
Defendant also claims that there is applicable sec. 269.32 (3), Stats., which provides that when a notice of a motion for an order has been served testimony may be taken at the hearing of the motion. This section has no application because no notice of defendant's motion to dissolve the order was given. The motion was made at the hearing without previous notice.
Sec. 326.12, Stats., provides for discovery examination before trial or at any time before a final determination, or if the examination is taken after the complaint is served but before issue is joined it may extend to all the allegations of the complaint. But such examinations when taken within the state shall be taken on previous notice to the adverse party or attorney of at least five days. If the defendant wished to examine the plaintiff concerning his business or with reference to any of the allegations of his complaint, no reason is given why the regular statutory proceeding should not have been followed.
In De Pauw v. Oxley, 122 Wis. 656, 100 N.W. 1028, it is said, in the syllabus:
". . . an order dissolving a temporary injunction, upon defendant's motion without answer or affidavits on his behalf, was error. If the injunction was dissolved in the attempted exercise of discretion, and not upon the ground that the complaint failed to state a cause of action, there was a clear abuse of discretion."
In Sobey v. Thomas, 37 Wis. 568, it was held that the court could not impose consent to arbitration as a condition for continuing an injunction.
We are of the view that the order should be reversed on the ground of abuse of discretion. Having reached this conclusion, it will serve no purpose in this case to discuss the question of the alleged denial of due process.
By the Court. — Order reversed. Cause remanded for further proceedings according to law.