Ehlert v. Kindt

Maeshall, J. Is it consistent with a proper exercise of judicial discretion in the administration of justice, to enjoin a defendant in an action from doing the things complained of in the complaint or other things to that end pending the-litigation, in order that the final decree may be effective to-accomplish the purpose of such litigation, and at the same-time permit the very mischief aimed at, or some part of it, to be accomplished by an employee of such defendant ? That, is the principal question presented for adjudication, the only one, in fact, of sufficient importance to require notice in this-opinion. The idea that a party to an action may be enjoined, and such party’s agent or employee be permitted to do the very things, or some essential part of them, against which the injunction is aimed, is quite novel. It is unprecedented so-far as any reliable authority goes that we are aware of. True, when an injunctional order prevents the doing of some act in regard to which a person not a party is interested,. [426] and. whose right is in no way dependent, upon the right of the person enjoined, such party may, by petition, intervene and have the restraining order to that extent modified. Authorities to that effect are cited to our attention by respondents’ counsel, particularly High, Injunction, § 16PT, and the ease upon which the text there is based (Speak v. Ransom, 2 Tenn. Ch. 210), but that rule does not reach this case. It applies where a stranger has rights that cannot be interfered with in the action — rights that exist entirely independent of any controversy involved in the litigation. If the principal contractor, under the circumstances shown here, had no right to go on with the city contract, plainly the respondents, as subcontractors under such principal contractor, possessed no such right. It is the law that a person enjoined must, at his peril, not only refrain from doing the things covered by the injunctive order himself, but also prevent any one acting under him, such as his agent or employee, from doing the same thing. Poertner v. Russel, 33 Wis. 193; High, Injunction, § 1438. It is no answer to such rule, when applied here, to say that no substantial damage could accrue to the defendant city by the erection of a structure on its property that it was not obliged to pay for, •even if that were true. If there is any force in such suggestion, it bears on the question of whether the scope of the order against the principal contractor was too broad. That question is foreclosed for the purposes of this case. It stands judicially determined by the trial court that a situation was presented calling for restraint upon the conduct of the principal contractor till the final adjudication of its rights. As an incident to such determination a proper administration required like restraint upon those who had no rights except by relation to and dependent upon the rightfulness of the acts enjoined. The foregoing is considered to be so plainly in accord with familiar principles and settled practice that no further [427] discussion of the subject will be indulged in. Questions discussed in the briefs of counsel in regard-to the sufficiency of the complaint are not deemed to be involved in this appeal, hence are not decided. By the Court.— The order appealed from is reversed.