Northwestern Traveling Men's Ass'n v. Raphael , 1905 Ill. App. LEXIS 423 ( 1905 )

Mr. Justice Smith

delivered the opinion of the court.

The theory of appellee’s bill is that she has an equitable interest in the emergency fund in the hands of appellant association which holds the fund in trust for the benefit of its members or their beneficiaries, and that under the. constitution and by-laws of appellant, appellee is entitled to have paid to her by appellant out' of the emergency fund $1,440 with interest from August, 1903.

The bill admits that upon the presentation of the proof of death of ¡Raphael, a mortuary assessment was ordered against each and every member of the association and that the amount of $2,560 was collected on the assessment and paid over to her. There is no allegation that more than this amount was collected on the mortuary assessment. The bill makes no averment of any mismanagement of the trust fund by the board of directors of appellant or by any of its officers or agents, or of any threatened misapplication thereof or of anything done or proposed to be done by appellant, having for its object the perversion of the alleged trust. The bill is not framed upon any such basis for controlling and preserving the fund. The court is asked to reach into this fund and take out $1,440 of the money and hand it over to complainant upon her general demand against appellant association which has never been established at law; and in the meantime, while the court is investigating the questions involved, that appellant shall be restrained from using the fund foi the purposes for which it was created.

As a basis for this extraordinary relief it is alleged that the membership of appellant association is gradually decreasing and that the assets of appellant, including the emergency fund, will be dissipated and lost to complainant.

The trustee is not shown to have1 done any specific act or taken any steps inconsistent with a proper administration of the fund in accordance with the constitution and bylaws governing its management of the fund. , hTor is it made to appear by the bill "that appellant has refused to do any act which makes it proper for a court of equity to enjoin the appellant from using the fund as it is bound to use it under the laws by which it is governed. On the contrary it does appear that appellee is attempting by means of this injunction to obtain an unjust and inequitable advantage over other beneficiaries shown to exist, not to mention, its injurious effects upon appellant. Courts should proceed with great caution in issuing writs of injunction. As said in Lloyd v. Catlin Coal Co., 210 Ill., 470: “It'is the duty of the court to consider the inconvenience and damage that will result to the defendant as well as the benefit to accrue to the complainant by the granting of the writ, and where the defendant’s damages and injuries will be greater by granting the writ than will he the complainant’s benefit by granting the writ, or greater than will be complainant’s damages by the refusal of it, the court will, in the exercise of a sound discretion refuse the writ. Fullenwider v. Supreme Council of Royal League, 180 Ill., 621; Miller v. Cook, 135 Ill., 190; Seeger v. Mueller, 133 Ill., 86.”

We are not aware of any principle of equity jurisprudence which will justify the issuing of an injunction in such a case as this to compel an association to hold a fund pending a hearing or trial to see if it will not be wanted to answer a decree or judgment which the complainant hopes to obtain. Phelps v. Foster, 18 Ill., 309; Shufeldt v. Boehm, 96 Ill., 560.

The order granting the injunction is reversed.

Reversed.