MR. JUSTICE WARD
delivered the opinion of the court:
The defendant, Lewis Barker, appealed from an order of the circuit court of Cass County issuing a temporary restraining order and from an order of that court denying the defendant’s motion to dissolve it. The Appellate Court for the Fourth District, with one justice dissenting, dismissed the appeal, holding that these orders were not appealable under Rule 307 (50 Ill.2d R. 307). (3 Ill. App. 3d 600.) We granted leave to appeal.
On May 5, 1970, a labor dispute was in progress at the plaintiff’s manufacturing plant near Beardstown. On that date, the plaintiff filed a verified complaint for permanent injunction, temporary restraining order, and preliminary injunction, charging the defendant and the members of the labor union with certain acts of intimidation and violence and with preventing ingress to and egress from the plaintiff’s plant. On the same date the plaintiff also filed a motion for a temporary restraining order supported by an affidavit and a motion for preliminary injunction. On the day the pleadings were filed, the court, without notice to the defendant, issued a temporary order restraining the defendant and members of the union from interfering with ingress to or egress from the plaintiff’s plant and from threatening and intimidating employees of plaintiff or other persons in specific ways. No bond was required of the plaintiff.
The temporary restraining order provided that it would expire on May 15, 1971, unless extended by order of the court for good cause shown. At the same time that the court issued the restraining order it also set the motion for preliminary injunction for hearing on May 14, and directed that notice of the hearing be given to the defendant. On May 13 the defendant filed his motion to dissolve the restraining order. On May 14 the court, on the defendant’s motion, continued until 8:30 A.M. on May 19 the hearing on the motion for preliminary injunction and set the motion to dissolve the restraining order for hearing at the same time. The court also ordered that the restraining order should remain in effect until that time but should then expire unless further extended. On May 19, after hearing argument of counsel, the court denied the motion to dissolve the restraining order. The order was not further extended, however, and it thus expired at that time. No action is shown by the record to have been taken as to the motion for preliminary injunction.
The defendant maintains that the temporary restraining order was appealable under Rule 307(a), which provides: “An appeal may be taken to the Appellate Court from an interlocutory order of court (1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” We agree, and therefore the judgment of the appellate court must be reversed. Before discussing the ground for reversal, it is appropriate to mention that, before the appellate court, the parties, at the court’s request, filed supplemental briefs addressed to the question whether the appeal had been made moot by the expiration of the restraining order. While the majority opinion does not discuss that issue, it is apparent that the appellate court concluded that the case was not moot, since the case was disposed of on the ground of nonappealability. The plaintiff has not renewed its claim of mootness in this court.
From its enactment in 1874 until 1967 the Injunction Act referred to injunctions generally, without explicitly distinguishing between permanent and temporary injunctions and without making specific provision for the latter. Some provisions of the Act, however, such as sections 8, 9, and 12 (Ill. Rev. Stat. 1965, ch. 69, pars. 8, 9, 12), which deal with injunction bonds and with damages for the wrongful issuance of an injunction, could only have been applicable to preliminary, as opposed to permanent, injunctions (Chicago Title & Trust Co. v. De Lasaux, 336 Ill. 522, 529-30; Schien v. City of Virden, 5 Ill.2d 494, 503; House of Vision, Inc. v. Hiyane, 42 Ill.2d 45, 49), thus evidencing a legislative intention that such relief might be awarded. The same intention was disclosed by section 3 (par. 3), which forbade the granting of an injunction without previous notice to the adverse party unless it appeared from the complaint or from an accompanying affidavit that “the rights of the plaintiff will be unduly prejudiced if the injunction is not issued immediately or without notice.” For many years trial courts in this State have entertained applications for preliminary injunctions, referring to them, interchangeably, as preliminary injunctions, temporary injunctions, interlocutory injunctions, restraining orders, and interlocutory orders. Baird v. Community High School Dist. No. 168, 304 Ill. 526, 529; People ex rel. Chicago Bar Ass’n v. Standidge, 333 Ill. 361, 362, 364; Schuler v. Wolf, 372 Ill. 386, 389; Almon v. American Carloading Corp., 380 Ill. 524, 529; Centennial Laundry Co. v. West Side Organization, 34 Ill.2d 257, 261; Cohen v. Sparberg, 316 Ill. App. 140, 141; Northern Illinois Coal Corp. v. Langmeyer, 340 Ill. App. 423, 429.
Since 1887, when legislation was enacted making certain interlocutory orders appealable (Laws of 1887, p. 250), review by the appellate court of an order granting a preliminary injunction or overruling a motion to dissolve it has been available, formerly under section 123 of the Practice Act of 1907 (Laws of 1907-08, p. 409) and section 78 of the Civil Practice Act of 1933 (Ill. Rev. Stat. 1935, ch. 110, par. 206). Prior to 1955 an order allowing a motion to dissolve a preliminary injunction was not appealable (American Dixie Shops, Inc., v. Springfield Lords, Inc., 8 Ill. App. 2d 129, 135), but in that year section 78 was broadened to permit review of orders granting, modifying, refusing, dissolving, and refusing to dissolve a preliminary injunction. (Laws of 1955, p. 2277.) Section 78 was repealed in 1963 (Laws of 1963, p. 2691), but its provision for interlocutory review of preliminary injunctions was preserved in a rule of this court, which currently appears as Rule 307. No question appears ever to have been made as to the appealability of such orders, and, as we understand its position, the plaintiff here does not contend that if the order of the circuit court had worn the tag of “preliminary injunction” the appellate court would have lacked the power to review it.
Prior to the 1967 amendment of the Injunction Act it had been recognized that in determining what constitutes an injunction order subject to interlocutory review the courts would look to the substance rather than to the form. (Valente v. Maida, 24 Ill. App. 2d 144, 149.) In Valente an order staying proceedings in a case pending the rendition of judgment in a related case was treated as a reviewable order, notwithstanding that the order used the term “stay” rather than “injunction.” The same conclusion was reached with respect to an interlocutory appeal from an order denying a motion for a stay of proceedings pending arbitration of the claim in controversy. (School Dist. No. 46 v. Del Bianco, 68 Ill. App. 2d 145; Applicolor, Inc. v. Surface Combustion Corp., 77 Ill. App. 2d 260.) The Valente case was also followed in Wiseman v. Law Research Service, Inc., 133 Ill. App. 2d 790, where the trial court denied a motion to stay proceedings until the conclusion of an appeal in a different case.
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MR. JUSTICE WARD
delivered the opinion of the court:
The defendant, Lewis Barker, appealed from an order of the circuit court of Cass County issuing a temporary restraining order and from an order of that court denying the defendant’s motion to dissolve it. The Appellate Court for the Fourth District, with one justice dissenting, dismissed the appeal, holding that these orders were not appealable under Rule 307 (50 Ill.2d R. 307). (3 Ill. App. 3d 600.) We granted leave to appeal.
On May 5, 1970, a labor dispute was in progress at the plaintiff’s manufacturing plant near Beardstown. On that date, the plaintiff filed a verified complaint for permanent injunction, temporary restraining order, and preliminary injunction, charging the defendant and the members of the labor union with certain acts of intimidation and violence and with preventing ingress to and egress from the plaintiff’s plant. On the same date the plaintiff also filed a motion for a temporary restraining order supported by an affidavit and a motion for preliminary injunction. On the day the pleadings were filed, the court, without notice to the defendant, issued a temporary order restraining the defendant and members of the union from interfering with ingress to or egress from the plaintiff’s plant and from threatening and intimidating employees of plaintiff or other persons in specific ways. No bond was required of the plaintiff.
The temporary restraining order provided that it would expire on May 15, 1971, unless extended by order of the court for good cause shown. At the same time that the court issued the restraining order it also set the motion for preliminary injunction for hearing on May 14, and directed that notice of the hearing be given to the defendant. On May 13 the defendant filed his motion to dissolve the restraining order. On May 14 the court, on the defendant’s motion, continued until 8:30 A.M. on May 19 the hearing on the motion for preliminary injunction and set the motion to dissolve the restraining order for hearing at the same time. The court also ordered that the restraining order should remain in effect until that time but should then expire unless further extended. On May 19, after hearing argument of counsel, the court denied the motion to dissolve the restraining order. The order was not further extended, however, and it thus expired at that time. No action is shown by the record to have been taken as to the motion for preliminary injunction.
The defendant maintains that the temporary restraining order was appealable under Rule 307(a), which provides: “An appeal may be taken to the Appellate Court from an interlocutory order of court (1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” We agree, and therefore the judgment of the appellate court must be reversed. Before discussing the ground for reversal, it is appropriate to mention that, before the appellate court, the parties, at the court’s request, filed supplemental briefs addressed to the question whether the appeal had been made moot by the expiration of the restraining order. While the majority opinion does not discuss that issue, it is apparent that the appellate court concluded that the case was not moot, since the case was disposed of on the ground of nonappealability. The plaintiff has not renewed its claim of mootness in this court.
From its enactment in 1874 until 1967 the Injunction Act referred to injunctions generally, without explicitly distinguishing between permanent and temporary injunctions and without making specific provision for the latter. Some provisions of the Act, however, such as sections 8, 9, and 12 (Ill. Rev. Stat. 1965, ch. 69, pars. 8, 9, 12), which deal with injunction bonds and with damages for the wrongful issuance of an injunction, could only have been applicable to preliminary, as opposed to permanent, injunctions (Chicago Title & Trust Co. v. De Lasaux, 336 Ill. 522, 529-30; Schien v. City of Virden, 5 Ill.2d 494, 503; House of Vision, Inc. v. Hiyane, 42 Ill.2d 45, 49), thus evidencing a legislative intention that such relief might be awarded. The same intention was disclosed by section 3 (par. 3), which forbade the granting of an injunction without previous notice to the adverse party unless it appeared from the complaint or from an accompanying affidavit that “the rights of the plaintiff will be unduly prejudiced if the injunction is not issued immediately or without notice.” For many years trial courts in this State have entertained applications for preliminary injunctions, referring to them, interchangeably, as preliminary injunctions, temporary injunctions, interlocutory injunctions, restraining orders, and interlocutory orders. Baird v. Community High School Dist. No. 168, 304 Ill. 526, 529; People ex rel. Chicago Bar Ass’n v. Standidge, 333 Ill. 361, 362, 364; Schuler v. Wolf, 372 Ill. 386, 389; Almon v. American Carloading Corp., 380 Ill. 524, 529; Centennial Laundry Co. v. West Side Organization, 34 Ill.2d 257, 261; Cohen v. Sparberg, 316 Ill. App. 140, 141; Northern Illinois Coal Corp. v. Langmeyer, 340 Ill. App. 423, 429.
Since 1887, when legislation was enacted making certain interlocutory orders appealable (Laws of 1887, p. 250), review by the appellate court of an order granting a preliminary injunction or overruling a motion to dissolve it has been available, formerly under section 123 of the Practice Act of 1907 (Laws of 1907-08, p. 409) and section 78 of the Civil Practice Act of 1933 (Ill. Rev. Stat. 1935, ch. 110, par. 206). Prior to 1955 an order allowing a motion to dissolve a preliminary injunction was not appealable (American Dixie Shops, Inc., v. Springfield Lords, Inc., 8 Ill. App. 2d 129, 135), but in that year section 78 was broadened to permit review of orders granting, modifying, refusing, dissolving, and refusing to dissolve a preliminary injunction. (Laws of 1955, p. 2277.) Section 78 was repealed in 1963 (Laws of 1963, p. 2691), but its provision for interlocutory review of preliminary injunctions was preserved in a rule of this court, which currently appears as Rule 307. No question appears ever to have been made as to the appealability of such orders, and, as we understand its position, the plaintiff here does not contend that if the order of the circuit court had worn the tag of “preliminary injunction” the appellate court would have lacked the power to review it.
Prior to the 1967 amendment of the Injunction Act it had been recognized that in determining what constitutes an injunction order subject to interlocutory review the courts would look to the substance rather than to the form. (Valente v. Maida, 24 Ill. App. 2d 144, 149.) In Valente an order staying proceedings in a case pending the rendition of judgment in a related case was treated as a reviewable order, notwithstanding that the order used the term “stay” rather than “injunction.” The same conclusion was reached with respect to an interlocutory appeal from an order denying a motion for a stay of proceedings pending arbitration of the claim in controversy. (School Dist. No. 46 v. Del Bianco, 68 Ill. App. 2d 145; Applicolor, Inc. v. Surface Combustion Corp., 77 Ill. App. 2d 260.) The Valente case was also followed in Wiseman v. Law Research Service, Inc., 133 Ill. App. 2d 790, where the trial court denied a motion to stay proceedings until the conclusion of an appeal in a different case. Although the defendant in Wiseman apparently did employ the word “enjoin” as well as “stay”, the appellate court commented, “Even if defendant had not used the open-sesame word ‘enjoin’ to invoke this rule [i.e., Rule 307], the words ‘stay’ and ‘restrain’ mean about the same and had a ‘stay’ alone been allowed its effect would have been to ‘enjoin’ further proceedings. 133 Ill. App. 2d at 791.
The term “temporary restraining order” was introduced into the Injunction Act in 1967 by an amendment which added a new section, numbered 3—1, that prescribed the conditions for the issuance of such an order without notice. (Laws of 1967, p. 2715, Ill. Rev. Stat. 1967, ch. 69, par. 3—1.) The same legislation also amended section 9, which relates to injunction bonds, so as to provide for such a bond in connection with a temporary restraining order as well as a preliminary injunction, and clarified section 3 by inserting the word “preliminary” before the word “injunction.”
The language of section 3—1 is patterned after, although it does not follow verbatim, the language of Rule 65(b) and 65(d) of the Federal Rules of Civil Procedure. The Federal courts have drawn a distinction between a temporary restraining order and a preliminary injunction. The latter is held to be appealable under the statutory provisions permitting appeals from interlocutory orders granting, refusing, dissolving, or refusing to dissolve an injunction (28 U.S.C. sec. 1292(a)). A corresponding ruling with respect to a temporary restraining order is ordinarily held not to be appealable. See Moore, Federal Practice, par. 110.20 [5] (2d ed.).
There are decisive differences between the setting of Federal Rule 65(b) and that of section 3 — 1 of the Injunction Act, however, which defeat any argument that the enactment of that section imported into our practice the Federal doctrine of nonappealability. Rule 65(a)(1) provides, “No preliminary injunction shall be issued without notice to the adverse party.” Rule 65(b) then affirmatively grants a power to issue a temporary restraining order without notice, but goes on to set various limits upon its issuance. In the context of the Federal rules, therefore, the ex parte restraining order stands clearly as a separate and distinct device for securing interim relief which would otherwise be precluded by the notice requirement in Rule 65(a)(1). In contrast, sections 1 and 3 of the Injunction Act, both before and after 1967, have permitted the issuance of preliminary injunctions with or without notice. There was no gap which required filling by the creation of a new type of judicial order.
The first sentence of section 3 — 1 provides:
“No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon.”
Section 3, as amended in 1967, contains very similar language:
“No court or judge shall grant a preliminary injunction without previous notice of the time and place of the application having been given the adverse party unless it clearly appears, from' specific facts shown by the verified complaint or by affidavit accompanying the same, that immediate and irreparable injury, loss or damage will result to the applicant before notice can be served and a hearing had thereon.”
Section 3 and section 3—1 thus cover much the same ground, but the latter prescribes more rigorously and in greater detail the proof of injury which must be made, and it sets a maximum time during which the defendant may be restrained when the restraining order is obtained ex parte. It has been suggested that the failure of the legislature to repeal section 3 leaves an applicant for interim relief the option of proceeding under that section and thereby avoiding whatever additional requirements are imposed by section 3—1. (Schiller, Injunctive Relief Without Notice — Preliminary Injunction or Temporary Restraining Order, 52 Chi. Bar Rec. 304 (1971); cf. O’Brien, Chancery Practice: Injunctions and Emergency Relief, 54 Chi. Bar Rec. 21, 23-24 (1972).) That is a point which we need not decide in this case. If the two sections offer alternative methods of proceeding, then to hold that an order entered under section 3—1 is nonappeal able would give the plaintiff an election to foreclose the defendant from an interlocutory appeal, a result which would be anomalous and unfair. If, on the other hand, section 3—1 is to be read as imposing additional requirements of proof which must be met by all applicants for ex parte interim relief, however denominated, that hardly argues in favor of eliminating a right of interlocutory appeal designed to safeguard the interests of the defendant. On either hypothesis, the question of appealability turns on whether the order under consideration falls within the provision of Rule 307(a)(1). Whether the order is captioned as a preliminary injunction or a temporary restraining order, it constitutes a restraint upon the defendant which is essentially injunctive in character.
One of the considerations underlying the Federal doctrine making temporary restraining orders nonappealable is that an appellate court should not be called upon to review an order issued ex parte, since the trial judge will have had the opportunity to hear but one side of the case. (See Connell v. Dulien Steel Products, Inc. (5th Cir. 1957), 240 F.2d 414, 418.) Such a situation cannot arise under Rule 307, for paragraph (b) of that rule requires that a party intending to take an appeal from an interlocutory order entered on an ex parte application shall first present, on notice, a motion to vacate the order, a procedure which was followed in the present case. (Under Federal Rule 65(b) one may seek to dissolve or modify a restraining order but of course he need not do so.) As stated by the appellate court in discussing a rule of court establishing the same procedure, the purpose of the rule is “to prevent appeals from orders entered under circumstances indicating only partial and one-sided consideration.” (City National Bank and Trust Co. v. Davis Hotel Corp. 280 Ill. App. 247, 251.) That objection to appealability was eliminated here by the defendant’s motion to vacate the order.
In its opinion the appellate court stresses the short period of time for which a temporary restraining order can remain operative, noting that the limit of twenty days would as a practical matter preclude a decision on appeal prior to the expiration of the order. That is a factor which is also mentioned in the Connell case cited above as supporting the Federal doctrine of nonappealability. We do not find this consideration persuasive. During the time when it remains in effect a restraining order could work substantial injury upon the defendant, injuries for which he should be entitled to recover damages if the order was wrongfully issued.
However, this court has held, in the case of preliminary injunctions, that no damages may be recovered by the defendant if the injunction has not been dissolved, since the refusal of the trial court to grant a motion to dissolve amounts to an adjudication that the injunction was not wrongfully issued, regardless of whether a permanent injunction is ultimately either granted or denied. (Schien v. City of Virden, 5 Ill.2d 494; Stein v. Green, 6 Ill.2d 234; cf. Nestor Johnson Mfg. Co. v. Goldblatt, 371 Ill. 570; Schuler v. Wolf, 372 Ill. 386.) To hold that the refusal to dissolve a temporary restraining order is not appealable under Rule 307 would similarly preclude the defendant from applying for an award of damages. We may add that here the defendant would be completely foreclosed from any relief, since no bond was required of the plainitff. The failure to require a bond was, indeed, one of the grounds on which the defendant bases his claim that the restraining order was improperly issued.
It appears there have been only two reported decisions involving interlocutory appeals under Rule 307(a)(1) since the 1967 amendment to the Injunction Act. One is People ex rel. Pollution Control Board v. Lloyd A. Fry Roofing Co., 4 Ill. App. 3d 675. There the Board, after issuing a cease and desist order against the roofing company, filed a complaint in the circuit court for an injunction and also a motion for a temporary restraining order, both designed to secure compliance with its cease and desist order. Prior to the filing of the complaint on December 14, 1971, the defendant had filed a petition directly to the appellate court for review of the plaintiff’s administrative order. Subsequent to the filing of the complaint in the circuit court, the defendant had moved in the appellate court proceeding for an order staying the plaintiff’s cease and desist order, a motion which was later denied.
When the circuit court denied the plaintiff’s motion for a temporary restraining order, the plaintiff took an appeal to the same appellate court, and the defendant moved to dismiss the appeal on the ground that the circuit court’s order was not appealable under Rule 307. The appellate court, without considering Rule 307, denied the motion on the ground that the refusal to grant a restraining order was reviewable as a final judgment under Rule 301, since the refusal “had the effect of determining substantial rights of the parties which will be irreparably lost if review is delayed.” (4 Ill. App. 3d at 680.) This result was reached in reliance upon United States v. Wood (5th Cir. 1961), 295 F.2d 772, a case arising under the Federal statute relating to appeals from final judgments (28 U.S.C. sec. 1291). We are, of course, not concerned here with the applicability of the principle announced in the Wood case to the particular facts of the Pollution Control Board case.
The second case dealing with the reviewing of restraining orders is County of Cook v. Ogilvie, 50 Ill.2d 379. While the issue of appealability is not discussed in the opinion, an examination of the briefs discloses that the case reached us under Rule 302(b) as a case requiring expeditious determination, and that no motion was made to dismiss the appeal as unauthorized under Rule 307. The decision left open the question now presented.
For the reasons given, the judgment of the appellate court is reversed, and the cause is remanded with directions to deny the motion to dismiss the appeal.
Reversed and remanded, with directions.