Hovorka v. Hemmer

Appellate Court of Illinois

Hovorka v. Hemmer

107 Ill. App. 312, 1903 Ill. App. LEXIS 442

DecidedMarch 30, 1903

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Hovorka v. Hemmer, 107 Ill. App. 312, 1903 Ill. App. LEXIS 442 (Ill. Ct. App. 1903).

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Opinion

Mr. Presiding Justice Ball

delivered the opinion of the court.

February 20, 1902, appellants filed a bill in the Superior Court for the cancellation of an agreement therein described, and for an injunction. Four days later they obtained an injunctional order restraining appellee from bringing any suit at law upon such agreement. March 17, 1902, upon a hearing, this temporary injunction was dissolved, and leave was given to amend the bill. On the 19th day of the same month appellee filed his suggestion of damages. Three days thereafter the bill was amended. To the bill as amended appellee filed a general demurrer. April 29, 1902, the court sustained the demurrer and dismissed the bill for want of equity. The suggestion of damages was heard June 27, 1902, and a decree was entered fixing the damages of appellee by reason of the granting of such injunction at the sum of $50, and directing that appellee have execution therefor. From this action of the chancellor the present appeal was perfected.

The contention of appellants that, because the bill was dismissed at the April term, 1902, and the decree complained of was not entered until the June term following, the award of damages was unwarranted and erroneous, is not well taken. The suggestion of damages was filed before the entry of the final decree. In such case the hearing and assessment thereon may be had at any subsequent term. McWilliams v. Morgan, 70 Ill. 551; Wing v. Dodge, 80 Ill. 573; Stinnett v. Wilson, 19 Ill. App. 40; Watts v. Stoltz, 28 Ill. App. 541; Curtis v. Wright, 40 Ill. App. 494; Streit v. Cooke, 90 Ill. App. 257.

The facts upon which the decree is based are fully recited in the decree. For this reason it was unnecessary to preserve in the record the evidence heard by the court in order to maintain the decree. Durham v. Mulkey, 59 Ill. 91, and cases cited; Jones v. Neely, 72 Ill. 449.

The decree of the Superior Court is affirmed.

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Mr. Presiding Justice Ball

delivered the opinion of the court.

February 20, 1902, appellants filed a bill in the Superior Court for the cancellation of an agreement therein described, and for an injunction. Four days later they obtained an injunctional order restraining appellee from bringing any suit at law upon such agreement. March 17, 1902, upon a hearing, this temporary injunction was dissolved, and leave was given to amend the bill. On the 19th day of the same month appellee filed his suggestion of damages. Three days thereafter the bill was amended. To the bill as amended appellee filed a general demurrer. April 29, 1902, the court sustained the demurrer and dismissed the bill for want of equity. The suggestion of damages was heard June 27, 1902, and a decree was entered fixing the damages of appellee by reason of the granting of such injunction at the sum of $50, and directing that appellee have execution therefor. From this action of the chancellor the present appeal was perfected.

The contention of appellants that, because the bill was dismissed at the April term, 1902, and the decree complained of was not entered until the June term following, the award of damages was unwarranted and erroneous, is not well taken. The suggestion of damages was filed before the entry of the final decree. In such case the hearing and assessment thereon may be had at any subsequent term. McWilliams v. Morgan, 70 Ill. 551; Wing v. Dodge, 80 Ill. 573; Stinnett v. Wilson, 19 Ill. App. 40; Watts v. Stoltz, 28 Ill. App. 541; Curtis v. Wright, 40 Ill. App. 494; Streit v. Cooke, 90 Ill. App. 257.

The facts upon which the decree is based are fully recited in the decree. For this reason it was unnecessary to preserve in the record the evidence heard by the court in order to maintain the decree. Durham v. Mulkey, 59 Ill. 91, and cases cited; Jones v. Neely, 72 Ill. 449.

The decree of the Superior Court is affirmed.

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107 Ill. App. 312, 1903 Ill. App. LEXIS 442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hovorka-v-hemmer-illappct-1903.

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