Hunt v. Pronger , 1906 Ill. App. LEXIS 509 ( 1906 )

Mr. Presiding Justice Adams

delivered the opinion of the court.

The appeal in this case is from the entire decree, including .that part of it dismissing the bill for want of equity; but the argument of appellants is confined solely to that part of the decree assessing damages on the dissolution of the injunction. Therefore, that only will be considered. The argument for appellants is not very coherent, but the questions which are argued are (1) whether the court erred in denying a petition of appellants "for a change of venue, or (2) in acting in violation .of the rules of the court, or (3) in allowing the full amount for services rendered by counsel for appellees, for all the appellees. All the proceedings took place before the Hon. John L. Healy. July 17,1905, appellants filed a petition for change of venue, which the court denied. All the abstract shows with regard to that petition is as follows: “Petition by complainants filed July 17, 1905, verified July 15, 1905, for the change of venue in the cause, on account of the prejudice of Judge Healy,” and that the petition was denied. Manifestly, the abstract is not sufficient to enable us to pass on the question of the " sufficiency of the petition, which, of itself, is enough to dispose of the objection. However, we have read in the record the affidavit of service of notice of the application and the petition. It appears from the affidavit that notice was served July 15, 1905, and the petition fails to state when knowledge of the alleged prejudice of the judge came to the appellants. This was necessary, as the suit was commenced April 5, 1905, to the May term of the court, at which term the application might have been made, 5ind it was not made until the July term, the June term having intervened. Hurd’s Rev. Stat. 1903, p. 1898, secs. 6 and 7. Toledo, W. & W. Ry. Co. v. Eddy, 72 Ill. 138. The petition is insufficient, came too late and was properly denied.

On July 13, 1905, on which day the suggestion of damages came on for hearing, appellants objected to the hearing of testimony on said suggestion on that day, basing their objections on paragraphs 7 to 11, inclusive, of rule 4 of the court; but the court overruled the objection and, on appellants’ counsel stating that appellants desired to file a petition for a change of venue, the hearing was adjourned till July 17,1905. The rule provides, among other things, as follows:

“ Contested motions .shall be deemed to include all motions pertaining to the settling of pleadings, for alimony and solicitors’ fees, for injunctions upon notice; to dissolve injunctions, for the appointment and removal of receivers, the hearing of exceptions to masters’ and receivers’ reports, and all other opposed motions, the hearing of which will operate to unduly delay the court in its other duties. A calendar of such motions will be made upon Friday of each week for hearing on the following Monday, in the order of "filing notices thereof, with the minute clerk, and will be posted in the court room. The court may, in its discretion, continue the call of said calendar from day to day, or oil a particular day to be specified, without notice, except as may be announced during the call thereof, and may, whenever in its opinion the exigency of the case requires it, hear particular motions at any time.”

It thus appears that, by the express letter of the rule, it • was within the discretion of the court to hear the motion without its being placed on the contested-motion calendar. Manufacturers Paper Co. v. Lindblom, 80 Ill. App. 267, 275. The suggestion of damages was filed May 11, 1905, and was not called for hearing till July 13, 1905, and prior to its being called for hearing, no motion was made by appellants to have it placed on the contested-motion calendar. July 13, 1905, was Friday. Had the suggestion of damages been transferred to the contested-motion calendar, it would, under the rule, have stood for hearing the next Monday or Tuesday, before the same judge, so that the objection is purely technical, and of no force even as a technicality, the matter being in the discretion of the court. Even when the court acts contrary to its rules, this will not be ground for reversal, unless it is apparent that injustice has been done. Field v. Railroad Co., 68 Ill. 367. That the rule was made for the convenience of the court and to prevent delay is manifest from the language of the rule, namely, “and all other motions, the hearing of which will operate to unduly delay the court in its other duties.” The objection was properly overruled.

Counsel for appellants contend that the decree, in awarding damages to W. G. Souders and Martha Souders, is manifestly erroneous, for the reason that they were not enjoined. Appellants made W. G. and Martha Souders defendants to the bill, and we are not prepared to hold that a defendant, although not enjoined with other defendants, in respect to the subject-matter of the bill, may not, if interested in the matter of the injunction, move to dissolve the injunction, and join in the suggestion of damages. Counsel for appellants do not, in their argument, point out or claim that W. J. and Martha Souders were not inter- • ested in the matter of the injunction, or in having the same dissolved, but rely merely on the fact that the injunction did not run against them. This may be true, and yet thejr may have been injuriously affected by the injunction, and, therefore, interested in having it dissolved. They joined xvith the appellees E. C. Pronger and W. D. Henke in moving for dissolution of the injunction, and also in the suggestion of damages. If Pronger and Henke were willing to have them share with them in the damages, we cannot perceive how appellants can be in any way prejudiced. Hone of the parties in whose favor the damages were assessed can ever recover damages against appellants on account of the injunction. The decree is res judicata as to each and all of them.

“An error without prejudice is always a harmless error.” Elliott on Appellate Procedure, section 632, and cases cited.

Counsel for appellants contend that the evidence shows that the services, for which damages were awarded for services of counsel, included services not rendered on the motion to dissolve the injunction, and that the sum awarded is excessive. We cannot concur in these contentions. John Barton Pavne, Esq., was- the solicitor who acted in reference to the motion to dissolve the injunction. In his testimony he says he was retained for the purpose of having the injunction dissolved, that he did not draft the answers which were used as affidavits on the motion to dissolve, and thinks he did not draft the demurrer, and there is no evidence that he did, and, in testifying as to counsel’s fees for preparation for the motion to dissolve, appearing in court in regard to the motion and arguing it, he confines his evidence exclusively to services in regard to the motion. In answer to a question whether he argued the demurrer, he answered: “I. should'say, incidentally, yes.” The demurrer, and the answers, as affidavits, were used in the argument. The language of the former is, in substance, that there is no equity in the bill, and it was strictly legitimate, and, as we think, unavoidable, to insist, on the hearing of the motion, that there was no equity in the bill. In Marks v. Columbia Yacht Club, 219 Ill. 421, it was objected that a demurrer filed by counsel who appeared on the motion to dissolve the injunction was argued on said motion; but the court said that made no difference. The evidence for the appellees Avas that the services rendered on the motion to dissolve the injunction Avere reasonably worth $500, and appellants introduced no evidence as to their value. The chancellor, had he thought proper so to do, might have exercised his independent judgment, exclusive of the testimony as to the value of the services, and have fixed such value at a less sum than that testified to. Lee v. Lomax, 219 Ill. 218. But, apparently, his judgment of the value of the sendees corresponded with the testimony given in open court, and he so found and decreed.

The decree will be affirmed.

Affirmed.