Dunning v. Young

67 Ill. App. 668, 1896 Ill. App. LEXIS 198

• Court: Appellate Court of Illinois
• Decided: January 7, 1897
• Status: Published

Opinion

Mr. Justice Waterman

delivered the opinion of the Court.

The only damages that can be allowed on the dissolution of an injunction are such as result from an improper suing out of the same; and the allowance for solicitors’ fees must be confined to service rendered on the motion to dissolve. Elder et al. v. Sabin et al., 66 Ill. 126; Lichtenstadt v. Fleisher, 24 Ill. App. 92; Weaver, Adm’r, v. Fries, 85 Ill. 349; Blair v. Reading et al., 99 Ill. 600; Moriarty v. Galt, 125 Ill. 417.

The allowance of fees rests, to a considerable degree, in the discretion of the chancellor before whom the -litigation has proceeded, and the discrimination made by him, as it can best be, between the services rendered on the motion to dissolve and those which were for the trial of the case, is a matter which presents to a reviewing court a difficult question.

So, too, whether anything should be allowed on a motion to dissolve when no dissolution was had until after hearing, is a thing with which the chancellor before whom the proceedings were, has an opportunity for coming to a correct conclusion which an appellate tribunal does not possess. Lichtenstadt v. Fleisher, 24 Ill. App. 92.

In the present case the motion to dissolve was denied, and only after hearing upon the merits was the injunction dissolved.

The Superior Court refused to allow the claim for damages. We can not say that it erred in so doing.

From the knowledge the chancellor had of the proceedings, he seems to have concluded that damages ought not to be allowed, and consequently stated that he would not hear evidence.

Unless upon the record we can say that appellant was entitled to damages, we can not find that it was error for the court to do as it did.

Perceiving no error, the order of the Superior Court is affirmed.