Glassbrenner v. Groulik

WiNsnow, J. It is manifest that there was no abuse of discretion in vacating the preliminary injunctional order. It is common knowledge that ice is a commodity which may at all times be purchased in the market. It is nowhere alleged that the defendant was insolvent, or that a judgment for damages against him could not be collected. The allegation of irreparable injury is therefore of little or no weight. If plaintiff was debarred from obtaining his ice from the ice house, he could obtain it elsewhere, and he could collect his loss or damage from the defendant if he showed himself entitled to recover any loss or damage. The case is not one 405 where, if the plaintiff recovers, his remedy will be valueless, or he will suffer irreparable injury unless the status quo be maintained; hence the case of Valley I. W. Mfg. Co. v. Goodrich, 103 Wis. 436, is not applicable. A motion was made to dismiss the appeal because the return of the clerk does not certify that the papers returned are the original papers (or copies as the case may be) used upon the hearing of the motion, as required by sec. 3050, Stats. 1898. The return simply states that the papers' returned are “ original papers in the action.” This court has frequently held that, in case of an appeal from an order, where neither the return nor the record itself shows that the papers returned are all of the papers used by each party on the motion, the appeal will be dismissed. Carpenter v. Shepardson, 43 Wis. 406; Tenney v. Madison, 99 Wis. 539; Superior C. L. Co. v. Superior, 104 Wis. 463. In the present case, however, the order appealed from names the papers upon which it was based, and, as these papers are all returned by the clerk, it affirmatively appears upon the record that the whole case which was before the trial court is before us, notwithstanding the defective certificate of the clerk. Hence we do not find it necessary to dismiss the appeal. By the Court.— Order affirmed.