Jones v. Gray

78 Ill. App. 309, 1898 Ill. App. LEXIS 959

• Court: Appellate Court of Illinois
• Decided: October 5, 1898
• Status: Published

Opinion

Mr. Justice Harker

delivered the opinion of the court.

" We are unable to see in appellees’ bill any sufficient ground for interference by a court of equity.

Jones, availing himself of a statutory right, perfected his appeal in regular manner. Appellees, instead of joining in the appeal as they should have done, saw fit to petition for a separate appeal and secured a hearing one day before the day set for Jones’ appeal. They obtained a judgment reversing the order of the commissioners and by this bill for injunction sought to prevent a judgment in conflict with it. We are inclined to the view that the three supervisors summoned in the Jones appeal, having.first acquired jurisdiction, did so to the exclusion of the other appeal, and that the proceedings and judgment secured under the second appeal are void. If we are correct in that view, then the effect of holding the bill good would be to shutoff the right to a lawful appeal. If, however, that view is incorrect and it be the law that appellees had the right to prosecute a separate appeal after Jones had perfected his appeal and the judgment obtained by them was valid, appellees could not resort to a court of equity to prevent Jones from prosecuting his appeal, because they had a remedy at law. What was to prevent their appearing before supervisors Neal, Conley and Gannaway, and moving to dismiss the appeal upon the ground that on the day before, a valid judgment had been entered reversing the final order of the commissioners ? If their judgment was valid it would have been the plain duty of the supervisors to sustain the motion. What right have appellees to assume that the supervisors would violate their duty and refuse to sustain the motion ? “ z Certainly they should have availed themselves of their rights to make the motion and have awaited the action of the supervisors before invoking the aid of a court of chancery.

Appellees assume that Jones’ appeal was a mere sham and was being prosecuted fraudulently and collusively at the instance of the commissioners and others to shut out other appeals, and for the purpose of securing a confirmation of the final orders. They assume further that upon such confirmation the commissioners would proceed to open up the road and they would be compelled to defend suits brought against them. Suppose that should occur, there is ’ nothing appearing in the bill that would preclude their interposing defenses. If their position that the judgment reversing the final order of the commissioners is right, then all overt acts done to force the road open would render the parties doing them liable in an action of trespass. Courts of equity will not interfere by injunction to prevent a tres- ' pass, except to prevent irreparable injury or to prevent a multiplicity of suits. Chicago v. Wright, 69 Ill. 318; Owens v. Crossett, 105 Ill. 354; Thornton v. Roll, 118 Ill. 350; Poyer v. Village of Des Plaines, 123 Ill. 111; Com’rs of Highways v. Green, 156 Ill. 504.

The decree of the Circuit Court will be reversed and the cause remanded with directions to sustain the demurrer to the bill.

Eeversed and reminded with directions.