#### Cline, Respondent, vs. Whitaker, Appellant.

*December*7, *1910*—

January *10, 1911.*

*Injunctional or Ser binding though erroneous: Jurisdiction: Issuance in legal action.*

1. However erroneous an injunctional order may be in tbe sense of wrong or inexcusable use of judicial power, it is binding on *the*person restrained and efficiently notified thereof till set aside in some proper proceeding.

2. Tbe saying tbat an injunctional order is good till set aside, if tbe court making it bad jurisdiction of tbe subject-matter, is to be understood, as to tbe word “jurisdiction,” to refer to tbe existence or nonexistence of judicial power, and as to tbe word "subject-matter” to sucb subjects between tbe parties.

3. If, in a given situation, there is any valid ground upon which a temporary injunctional order might, under any circumstances, be properly issued, though none be stated in tbe complaint, an® it would be highly erroneous, even jurisdictionally wrong in tbe sense of inexcusable use of judicial authority, to allow such-an interference and sucb allowance nevertheless occurs, it is erroneous, not void, and cannot properly be defied.

*4404. As regards an injunctional order, “if the court’s command is within its power to make under any circumstances upon any grounds and for any reasons whatever, the person enjoined is hound to obey till the order shall have been vacated.”

5. A temporary injunctional order may be issued, under some circumstances, in a legal action.

[Syllabus by Maeshall, J.J

'Appeal from a judgment of the circuit court for Milwaukee county: Orrew T. Williams, Circuit Judge.

*Affirmed.*

Plaintiff commenced an action to recover damages from defendant for, as cliarged, Raving maliciously injured his business by publishing and distributing circulars containing false and defamatory statements concerning it. Upon a complaint stating a cause of'action for damages for the wrong alleged, and an affidavit to the effect that such wrong was continuous and was threatened to be seriously active pending the litigation, supported by an affidavit by one Johnson, the court granted a temporary injunctional order restraining defendant from continuing the alleged wrong. Subsequently to the service of the order on defendant, plaintiff informed the ■court, in due form, that the former had violated it, where-npon defendant was, in due form, requested to show cause, February 26, 1910, why he should not be punished for contempt. Before such order was heard the injunctional order was, on motion, set aside with costs.

The hearing in the contempt proceedings was, in due time, had, resulting in defendant being found guilty and adjudged to pay a fine of $25 and $8.18, costs and expenses, and to be •committed till payment should be made. The appeal is to review such determination.

*W. B. Rubin*and *W. G. Zabel,*for the appellant.

*David B. Johnson,*for the respondent.

MaRshall, J.

Is a temporary order void, made by a circuit court incidental to an action therein for damages for publication and circulation, by the one restrained, of circulars, con*441taining libelous matter of and concerning plaintiff and bis business, preventing continuation of tbe wrong pending tbe action *%*That is tbe vital question upon tbis appeal.

However erroneous tbe order in question may bave been, or even if it were jurisdictionally bad, in tbe sense of inexcusable use of judicial authority, as distinguished from want of power under any circumstances to make tbe same, it was binding on appellant till set aside in some proper proceeding to that end. *State ex rel. Fowler v. Circuit Court,*98 Wis. 143, 73 N. W. 788. Wilful disobedience of such an order, however improvidently issued, in tbe sense of an erroneous use or even abuse of power, is a criminal contempt. In tbe case cited, tbe court, in harmony with authority generally, said in effect: An injunctional order, within tbe power of the court, must be implicitly obeyed so long as it stands. It is not outside tbe power, if tbe court has jurisdiction of tbe subject-matter, as said in *State ex rel. Fowler v. Circuit Court, supra,*or perhaps more accurately said in *Davis v. Mayor, etc.*1 Duer, 451, unless there is a want of jurisdiction.

In dealing with such a matter as tbis the distinction between total want of jurisdiction; absolute absence of power, and want of jurisdiction, in tbe sense tbe term is commonly used, characterizing judicial action which is so highly erroneous as to be without legal justification, yet not, as has been said, beyond competency to err, — must' be kept in mind. Tbe two phases of jurisdiction were discussed at considerable length in *Harrigan v. Gilchrist,*121 Wis. 127, 99 N. W. 909, one being termed want of power and tbe other inexcusable departure from established principles; — a gross misuse of power. Tbe former is a usurpation. Tbe resulting judgment or order is totally void. Tbe latter is mere error. Tbe resulting judgment is valid, till avoided in proceedings to that end. Defiance of one is wrongfuL Defiance of tbe other is not.

*442It is commonly said, in reference to this subject, that if the court does not have jurisdiction of the subject-matter in an action its order or judgment entered therein is void. The word “subject-matter” is liable to be as misleading as the word “jurisdiction.” The latter is commonly used when want of power is not meant. The former is commonly used, merely to denote want of jurisdiction of the subject-matter of the action in the particular instance and in the particular way judicial power is invoked, and also as characterizing disability to judicially deal with such subjects between the parties under any circumstances. It is in the latter sense only that an order of the sort in question is a usurpation and may safely be disregarded.

It follows from the foregoing that, if it be true, as counsel for appellant claim, that a temporary restraining order in a legal action is improper, nevertheless if the court could, under any circumstances, deal with the subject between the parties by such an order, then the judicial act would not be void. But, it is not correct to say, there is no warrant for an interim restraining order in a legal action. Sec. 2773, Stats. (1898), specifies circumstances in such actions where such an order may be granted. Moreover, the complaint and the affidavits upon which the order in question was granted disclose a situation which might have been so presented for relief as to have rendered the act complained of proper. It was a legitimate subject for the court to deal with, though judicial power was not invoked in such a way as to warrant the action taken. That does not appear upon the face of the order, but does upon that of the complaint. So the order was plainly erroneous, perhaps jurisdictionally bad, in the sense of negligent inexcusable use or abuse of authority, but not a usurpa-tions act.

It should be understood that if in a given situation there is any valid ground upon which a temporary injunctional order might, under any circumstances, be issued, though none be *443stated in the complaint and such an order is nevertheless allowed, it is not void. In case of the person restrained being so circumstanced as to he hound to submit if it is not void, he must, in the main, at least, loot to the order only. If that is good on its face, in that it relates to a subject within the jurisdiction of the court, and otherwise appears regular, the duty to obey is plain. The person enjoined has no right to shape his course by merely what the complaint discloses. It may not state any cause of action and yet be subject to amendment in that regard. The complaint may not state facts warranting relief for which a temporary in junctional order is incidental, and yet such facts exist. The one enjoined cannot pass upon any of such questions and obey or defy the court according to his decision.- As said, substantially, in the leading case of *Davis v. Mayor, etc., supra,*if the court’s command is within its power to make under any circumstances upon any grounds and for any reason whatever, the person enjoined disobeys at his .peril.

The result of the foregoing is that the circuit court did not usurp authority in this case. Therefore, the wilful violation of its order was a criminal contempt. *State ex rel. Rose v. Superior Court,*105 Wis. 651, 668, 81 N. W. 1046; sec. 3417, Stats. (1898).

Some other questions are discussed by counsel and have been considered, but do not seem to have sufficient merit to warrant treating them in detail, or really in discussing them at all. They do not involve error affecting the substantial rights of appellant.

*By the Court.*— Judgment affirmed.