Opinion
November 11, 1954 —
December 7, 1954
APPEAL from a judgment of the circuit court for Milwaukee county: WALTER SCHINZ, Circuit Judge. Affirmed.
For the appellants there was a brief by Clarence J. O'Brien, town attorney, and Gram Wortley and Laurence C. Gram of counsel, all of South Milwaukee, and oral argument by Mr. Laurence C. Gram and Mr. O'Brien.
For the respondent there was a brief by Bernard N. Freudenfeld, attorney, and Donald C. Jacobson of counsel, both of Milwaukee, and oral argument by Mr. Freudenfeld.
On January 9, 1952, relator, Henry Ignasiak, commenced an action in the circuit court for Milwaukee county for a writ of mandamus to compel the town of Franklin to issue to him a license permitting him to haul and dispose of, upon his premises in the town, garbage and other refuse material which he had been in the business of collecting. The town made return to an alternative writ issued upon relator's petition and counterclaimed for a mandatory injunction requiring relator to abate the nuisance alleged to have existed as a result of the deposit of such refuse material. During the trial of the action the parties stipulated for judgment and on March 12, 1952, one was entered wherein it was decreed that relator's petition for a writ of mandamus be denied and that he abate the nuisance within ninety days from the date of entry of judgment by complying with certain regulations of the state board of health carried into the provisions of the judgment. Other details concerning the manner of abating the nuisance were provided in the judgment.
On December 5, 1952, the town obtained and served upon relator an order requiring him to show cause why he should not be punished for contempt for having failed to comply with the terms of the judgment, why the judgment should not be "modified restraining the plaintiff Henry Ignasiak from further hauling any waste material, . . . onto the premises described in the judgment," and why he should not be ordered to comply with the terms of the judgment by disposing of the rubbish and waste material accumulated upon the premises since the date of entry of judgment.
Trial of the issues made by the defendants and relator's affidavits was had to the court without a jury. No formal findings were made but the trial judge in a memorandum opinion stated "the record is wholly devoid of any showing of contumacy on the part of the petitioner in the original proceeding. . . . The motion to punish for contempt is dismissed on the merits."
Judgment dismissing "the petition for contempt" was entered on November 23, 1953. Defendants appeal.
From the record and briefs it appears that plaintiff has failed to comply with the terms of the judgment. That fact of itself does not make him a contemnor. Not every failure to obey a judgment constitutes contempt of court. For instance, inability of the alleged contemnor to obey a decree, if not brought upon himself, may be a defense to a charge for contempt.
"It is true that the remedy is severe and harsh. Imprisonment certainly should not be ordered when it appears that the default is the result of honest inability to pay, on account of business misfortunes, or lack of health or earning ability, or other circumstances which are not the fault of defendant." Staples v. Staples, 87 Wis. 592, 596, 58 N.W. 1036.
There is no bill of exceptions. In the absence thereof this court is limited in its review to ascertain whether the judgment is sustained by the pleadings and findings. Parke, Austin Lipscomb, Inc., v. Sexauer, 204 Wis. 415, 235 N.W. 785. The trial judge made no formal findings but filed a memorandum opinion in which he stated as is set forth in the foregoing statement of facts. The opinion must be taken as declaring a judicial finding that defendant has failed to establish facts constituting contempt. Will of Britt, 174 Wis. 145, 182 N.W. 738. We may not disturb the finding.
The town complains that the court erred in refusing to modify the judgment by providing therein "that plaintiff have some short period of time to finally comply with the original judgment." There is no need for such modification. The judgment by its own terms directs that the nuisance be abated within ninety days from its date. As matters now stand plaintiff's refusal or failure to comply does or does not constitute contempt of court, depending upon the facts occurring after the date of the judgment. That plaintiff has been acquitted of contempt in the instant proceeding does not prevent the town from acting again and at any time at which it might appear to its officials that plaintiff has contumaciously failed to comply with the terms of the judgment. In other words, the town has not been aggrieved by the court's refusal to modify the judgment as it requested.
By the Court. — Judgment affirmed.