Opinion
May 12, 1966. —
November 29, 1966.
APPEAL from orders of the circuit court for Milwaukee county: JOHN A. DECKER, Circuit Judge. Dismissed.
For the appellants there was a brief by O'Melia Kaye of Rhinelander, and oral argument by Walter F. Kaye.
For the respondent there was a brief by Brady, Tyrrell Bruce, and oral argument by Patrick W. Cotter, all of Milwaukee.
Sivyer Steel Casting Company (hereinafter referred to as Sivyer) brought an action to restrain the American Steel Pump Corporation (hereinafter referred to as American Steel) and the Mercantile National Bank of Chicago (hereinafter referred to as the Bank), which had been designated as a depository for the purposes of the transaction, from attempting to purchase shares of Sivyer stock through the solicitation of its stockholders. American Steel and the Bank appealed from an order of the circuit court of April 6, 1966, denying a motion to dismiss for want of jurisdiction and from an order enjoining the solicitation of Sivyer stockholders.
The defendants served a notice of appeal on April 8, 1966. On April 11, 1966, the appellants applied to this court for an order staying or modifying the circuit court order prohibiting all solicitation of Sivyer shareholders. On the same day, this court modified the circuit court order by permitting the defendants to advertise in mass media through the issuance of statements announcing offers to purchase or extending or modifying the terms of existing offers. The provisions of the circuit court order enjoining other types of solicitation were specifically declared to remain in force. Subsequently, Sivyer filed affidavits with the circuit court purporting to show that American Steel, subsequent to the issuance of the modified order of this court, persisted in a course of personal solicitation of Sivyer shareholders in the state of Wisconsin. Pursuant to an order to show cause and following a hearing, American Steel was found in contempt for violation of the order enjoining further personal solicitation and was fined $250. The contempt proceeding was dismissed as to the defendant Bank.
This appeal is from the order denying defendants' motion to dismiss for want of jurisdiction over the person of the defendants and from the issuance of the injunction. Following the circuit court's finding that American Steel had contumaciously disregarded the court's order with respect to solicitation of shareholders, the plaintiff Sivyer, on May 3, 1966, moved that the appeals be dismissed for lack of equity and for defendants' contumacious contempt of the injunction order as modified by this court. After oral argument and examination of the record on appeal, this court on May 16, 1966, concluded that the factual determination of jurisdiction following a hearing had not been made as required by sec. 262.16(3), Stats. The circuit court, pursuant to that order, on August 12, 1966, held the hearing on jurisdiction and on the same day determined that defendant American Steel was engaged in substantial activities within the state at and just prior to the commencement of this action and further determined that jurisdiction was acquired over that defendant. It also concluded that there was no evidence produced showing that the Bank was within the jurisdiction of the Wisconsin courts. American Steel has appealed from this finding of jurisdiction.
We stated in our order of May 16, 1966, that the trial judge erroneously predicated jurisdiction upon the allegations of the verified complaint. We pointed out that had the record supported those allegations, there clearly would have been jurisdiction. We, however, relied upon the rule of Pavalon v. Thomas Holmes Corp. (1964), 25 Wis.2d 540, 547, 131 N.W.2d 331, that, ". . . the allegations of a verified complaint are not to be considered as evidence tending to establish jurisdiction. . . ." We also noted that the trial judge, assuming the jurisdictional allegations of the complaint to be sufficient, rejected an offer of proof that would have shown additional jurisdictional contacts.
On the basis of evidence adduced at the hearing on the question of jurisdiction held on August 12, 1966, pursuant to the order of this court, it is apparent that the finding of jurisdiction over American Steel is not contrary to the great weight and clear preponderance of the evidence. There was undisputed evidence of at least two mailings to each of 294 of Sivyer stockholders in Wisconsin between March 1, 1966, and April 2, 1966. We conclude that, from the inception of this lawsuit, the defendant American Steel was within the jurisdiction of the court. There was, however, no evidence of any substantial activities by the Bank within the boundaries of Wisconsin, and this action as to it must be dismissed.
The motion of the respondent Sivyer to dismiss the appeal of the appellants is hereby granted because of the contumacious contempt of the appellants in defying the injunctional order of the circuit court as modified by this court on April 11, 1966. Authority for such dismissal is provided by Flakall Corp. v. Krause (1955), 269 Wis. 310, 311, 70 N.W.2d 8. The hearing of April 25, 1966, resulted in the production of evidence that clearly supports the trial judge's finding that the defendant American Steel was in contempt for its contumacious disregard of the injunction. It was established that one Keating, who was identified as a representative of American Steel, personally solicited several Sivyer shareholders on or about the 18th or 19th day of April, 1966, in contravention of the modified order that permitted solicitation only by the use of advertising or statements in the mass media. Solicitation was established by direct testimony of stockholders that they were solicited by Keating after he identified himself as a representative of American Pump.
The violation of the order of this court and the modified order of the circuit court is apparent, flagrant, and contumacious. Not only is the trial judge's finding of contempt not contrary to the great weight and clear preponderance of the evidence, there is in fact no evidence that would support a contrary finding. The evidence of conduct constituting contempt was uncontradicted by the appellants.
The complaint of the plaintiff Sivyer against the Bank is dismissed with costs. The appeal of the defendant American Steel is dismissed with costs.
HANLEY, J., took no part.