Henderson v. Flanagan , 1897 Ill. App. LEXIS 751 ( 1898 )

Me. Justice Windes

delivered the opinion of the Court;

On a bill filed by appellees January 11, 1898, in the Superior Court of Cook County, they secured an injunction against appellant and Robert Henderson without notice, by which the Hendersons were restrained from making any assignment of the contract of April 1, 1891, mentioned in the bill, or of any claim growing out of said contract, and from bringing or causing to be brought any action at law thereon, and from severing any claim under said contract into a number of claims, and from bringing actions thereon and from further prosecuting a suit brought by appellant for the use of Robert Henderson against appellees before one Martin, a justice of the peace, until the further order of the court.

Appellant, without having made any motion to dissolve the injunction, on February 9, 1898, perfected an appeal from the order granting said injunction by filing his appeal • bond and having the same approved by the clerk of the Superior Court, as required by statute. Appellees have moved to dismiss the appeal, and suggest to this court that this motion should be sustained because appellant made no motion in the court below to dissolve the injunction, and argue (a) that by an appeal from the original order, appellees are denied their statutory right (Chy. Act, Sec. 27) to amend their- bill without prejudice to the injunction; (b) that the statute on injunctions (Gh. 59, Sec. 15) provides for a motion in the court below to dissolve at any time on answer or on the face of the bill; (c) that appellees have the right, under the statute, to read affidavits in support of their bill (Ch. 59, Sec. 17 of the statute); (d) that the statute allowing appeals from interlocutory orders or decrees granting injunctions, means orders or decrees made after hearing both parties; (e) that the order in this case was made to preserve matters in statu quo, was an exercise of discretion by the court, and not an adjudication in the sense of making the order appealable; (f) that appellant having failed to object to the order in the court below, can not be heard to object in this court for the first time; (g) that the”allowance of an appeal to appellant on this record is absurd, because it confers original jurisdiction on this court; and (h) that appellant can not contend that he may not appeal from an order of the Superior Court denying a motion to dissolve the injunction, on account of previous decisions of this court, holding that portion of the statute relating to appeals from interlocutory orders overruling a motion to dissolve an injunction unconstitutional, because this court had no jurisdiction in any case involving the constitutionalty of a statute.

' As to -appellees’last, contention, there is no question of the validity of the statute before us, this being an appeal from the original order granting the injunction. ■

We have carefully considered the other contentions of appellees as to the effect of entertaining the appeal in this ease and the authorities'cited, and are of opinion that while the effect may be according to some of appellees’ contentions, still that should not be held to deprive appellant of his right of appeal which is given to him by the statute in words, viz.: “ Whenever an interlocutory order or decree is entered * * * granting an injunction * * * an appeal may be taken from such interlocutory order or decree to the Appellate Court,” etc. This language is so plain there is no room for a construction which would require appellant, before perfecting his appeal, to. move for a dissolution of the injunction. Any such construction, as it seems to us, would be judicial legislation, which should always be avoided. Such appeals have been entertained in. numerous cases in the Appellate Courts of this State in the more than ten.years the statute has been in force, and while it is a practice to be commended for a party against whom an injunction is granted to apply to the court granting the injunction, to dissolve it before resorting to the more expensive and less summary proceeding of an appeal, we see no reason why he should, by a judicial construction of the statute, not warranted by its language, be compelled to move for a dissolution in the court below before appealing. Were we So inclined, we think it unwise, at this time, to depart from a course of decisions made bv this court, running through the past ten years, unless clearly against reason, principle and the plain meaning of the statuté.

The only case cited by appellees which we think squarely supports*1 their position, is State v. District Courts, 52 Minn. 283, and that case seems to be based on a practice which had grown up under an old statute, different from the one being construed, under which it was held that an appeal would not lie from an ex parte order made by a judge in chambers as distinguished from an order of the court from which an appeal would lie. We think we should not be controlled by this decision as against the plain language of our statute, and therefore the motion to dismiss the appeal is denied.

From the bill it appears that appellant and appellees had entered into a contract April 1,1891, under which appellant assigned to appellees the right to manufacture and sell window sash bars under certain patents issued to and thereafter to be obtained by appellant, in ten different States; that the validity of said patents was being litigated in the United States Circuit Court between appellant and the Wells Glass Co.; that appellees acknowledged1 themselves indebted to appellant $50 each week until ninety days after final decree, in the case in the United States Circuit Court, $25 to be paid in cash each week, and $25 each week to be credited to appellant on the books of appellees, to defray litigation expenses in maintaining the validity of said patents, which expenses were to be borne equally by appellant and appellees; that in case a decree should be obtained in favor of appellant and appeal should be taken therefrom, then said $50 provision should continue as above provided until a decision should be made by the court to which appeal is taken; that in case the decree should be adverse to appellant, then he agreed to begin suit against any one engaged in infringing any new patent which he had secured, so that appellees be protected in their contract rights; that said United States Circuit Court sustained said patents, and appeal was taken by the Wells Glass Co. to the Circuit Court of Appeals, where the decree sustaining the patents was reversed, and the patents held to be void, wherefore, it was alleged by appellees, that the patents became valueless, and the consideration for the contract failed; that appellees had paid appellant, under the contract, $5,275.50, and for litigation expenses$5,816.25, and that appellant was indebted to them under the contract $1,082.19, for which they rendered an account to appellant; that an accounting is necessary, but appellant refuses to account, and has not begun suit against infringers under new patents, and “if he has obtained new patents he has not assigned them to complainants; ” that they continued to comply with the contract until the adverse decree by the said Court of Appeals, May 11, 1895, and are not indebted to appellant, but he, for the use of Robert Henderson, sued them before one Martin, a justice of the peace, for an installment claimed to be due under the contract from May 12 to 26, 1895, inclusive, and assigned to Robert Henderson; that said suit was brought to test the right of appellant to recover under the contract for the time subsequent to said decree, and that' appellant threatens to bring sixty other suits for installments claimed to be due him after May 12, 1895, to harass and annoy appellees; that appellant is insolvent, and it is necessary, to prevent irreparable injury to appellees; that an injunction issue to restrain appellant and Robert Henderson from making any assignment of said contract or any claim thereunder, from bringing any action thereon, from severing said claim and from further prosecuting the suit before the justice of the peace; that appellant is within the jurisdiction of the court, and appellees believe that if notice is given him he will depart from its jurisdiction before service can be had upon him, and unless an injunction issue without notice, irreparable injury will result to appellees. The bill prays for an accounting from appellant, besides the injunction which was. granted.

There are no facts alleged in the bill, nor stated in the affidavit attached thereto, it being only an affidavit that the matters stated in the bill are true, and that “ complainants will be unduly prejudiced, as set forth in said bill of complaint, unless an injunction issue forthwith and without notice,” which would justify an injunction without notice, or in fact an injunction at all. Facts must be stated from which the court can see that irreparable injury will or is liable to result. King v. Pardridge, 60 Illl. App. 475; Becker v. Defebaugh, 66 Ill. App. 504; Chicago City Ry. Co. v. General Elec. Co., 74 Ill. App. 465.

That appellant would depart from the jurisdiction of the court, so that service could not be had upon him if notice should be served upon him, is not sufficient, for there seems to be no reason why service of summons could not be had at the same time the notice of an application for injunction was served.

That a suit has been commenced and sixty more threatened is not of itself a cause for equitable cognizance. They are all between appellant and appellees. 1 High on Inj., Secs. 64 and 65; Chicago Pub. Stock Ex. v. McClaughry, 148 Ill. 372; Poyer v. Village of Desplaines, 123 Ill. 111; Commissioners of Highway v. Green, 156 Ill. 504.

There is no such case made by the bill as would give chancery jurisdiction to take an accounting between the parties. Gleason & Bailey Mfg. Co. v. Hoffman, 168 Ill. 28; Craig v. McKinney, 72 Ill. 305.

For all that appears from the bill there is no disputed account between appellees and appellant. It may be that appellant will admit that he owes appellees what they claim up to May 11, 1895. He has only refused to account with them, according to the bill. If he admits what they claim was due from him May 11, 1895, then the only question of difference between them is as to whether appellees should pay the subsequently accruing installments under the contract. As to that, appellees can make their defense at law as well as in equity. If appellant has or should assign his claim under the contract, their defense is as good against the assignee as against appellant. The claim of appellees that it can not be insisted upon in this court for the first time that there is a remedy at law, we are inclined to the opinion is not tenable, because the bill does not state facts for equitable cognizance, and there was no hearing before the chancellor;- but it is unnecessary to decide this point, as the order for injunction should be and is for the other reasons stated, reversed and the cause remanded.