Bour v. Illinois Central Railroad , 159 Ill. App. 566 ( 1911 )

Mr. Presiding Justice Baker

delivered the opinion of the court.

Section 21, chapter 69 R. S.-is as follows: “No appeal from a decree dissolving an injunction shall have the effect to continue in force the injunction unless the appeal is prayed at the entering of such decree, and the court allowing the same shall so order, or unless the party praying the appeal shall, within ten days after the appeal is allowed, procure from the Supreme Court, if in session, or a judge thereof if in vacation, an order directing that the appeal shall have the effect to continue such injunction in force; and no such order shall be granted except for a good cause appearing in the record, nor when the bill is dismissed by the complainant. The Supreme Court, or a judge thereof, may for good cause extend the time for procuring such order.”

The contention of appellee that the bill was dismissed by the complainant is not sustained by the record. It was dismissed by the court on the motion of complainant for the reasons stated in the order of dismissal.

Neither is the contention that this court has no authority to make an order to continue in force an injunction tenable. Appeals in such cases are now taken to this court and this court has the same power to make such an order that the Supreme Court had before this court was created.

The order or decree dissolving the injunction was entered January 16th “of the date of December 3, 1910.” Assuming that for the purposes of an appeal the order is to be regarded as entered January 16th, the complainant did not pray an appeal at the entering of such order or decree, but waited until January 25th, then moved for the dismissal of the bill, and on its dismissal prayed an appeal from the order or decree dissolving the injunction entered January 16th and from the decree dismissing the bill entered January 25th, which was allowed and perfected.

The provision that, “no appeal from a decree dissolving an injunction shall have the effect to continue in force the injunction unless the appeal is prayed at the entering of the decree,” is not limited to a case where the order is made by the court which dissolved the injunction, but applies as well to a case where an application for such an order is made to this court. In the one case the provision is, that the appeal shall not have such effect, “unless the appeal is prayed at the entering of such decree, and the court allowing the same shall so order;” in the other, the language following such provision is, ‘ ‘ or unless the party praying the appeal shall within ten days after the appeal is allowed,” apply, etc. The appeal mentioned in the provision last quoted refers to and means the appeal mentioned in the preceding clause, the appeal, “prayed at the entering of the decree.” The praying of an appeal, “at the entering of the decree,” is, by the provisions of the section, made a condition precedent to the right of the complainant to apply to this court for an order, “directing that the appeal shall have the effect to continue such injunction in force.”

The intention of the legislature, expressed in the Act, is to limit the time within which such an order may be made to ten days from the entering of the order or decree dissolving the injunction. To hold that a complainant may omit to pray an appeal, “at the entering of the order or decree,” dissolving the injunction and move for and obtain a decree dismissing the bill afterward, and then, by praying an appeal from such decree and from the order or decree dissolving the injunction, secure the right to apply to this court within ten days after such dismissal and appeal, for an order to continue the injunction in force, would be to extend the time within which a complainant may procure such order beyond ten days from the dissolution of the injunction by the number of days that elapsed between the dissolution of the injunction and the dismissal of the bill.

We fliiulr that the failure of the complainant to pray for an appeal from the order or decree dissolving the injunction “at the entering of such decree” deprives Trim of the right to procure from this court an order that the appeal shall have the effect to continue the injunction in force, and his motion that such order he now made will therefore he denied.

Motion denied.