Munger v. Crowe

76 N.E. 50, 219 Ill. 12

• Court: Illinois Supreme Court
• Decided: December 20, 1905
• Status: Published

Opinion

Mr. Justice Scott

delivered the opinion of the court:

The first question presented is, did the superior court of Cook county have jurisdiction of this suit? This must be determined by section 3 of chapter 22, Hurd’s Revised Statutes of 1903, which reads as follows:

“Suits in chancery shall be commenced in the county where the defendants, or some one or more of them resides; or if the defendants are all non-residents, then in any county; or if the suit may affect real estate, in the county where the same or some part thereof is situated. Bills for injunctions to stay proceedings at law shall be brought in the county in which the proceedings at law are had.”

It is contended by appellees that the superior court of Cook county did not have jurisdiction of the suit because it was a suit which may affect real estate in DeKalb county.

Appellants insist this suit would ndt affect real estate, and that the injunction operates upon the individuals only.

The court house of DeKalb county was a part of the realty on which it was located. Removing it, or a part of it, from its location necessarily affects the real estate on which it is located and of which it is a part. Restraining the removal of a building by one having or claiming the right to remove it, from one part of certain real estate to another part thereof, has a physical and material effect on the real estate.

“The meaning of the word ‘affect,’ as used in the statute, is to act upon, which indeed is its ordinary signification.” Enos v. Hunter, 4 Gilm. 211.

If the court, to grant the relief sought, must deal directly with the real estate itself,' then the suit is one “which may affect real estate.” Johnson v. Gibson, 116 Ill. 294; Hayes v. O’Brien, 149 id. 403; Craft v. Indiana, Decatur and Western Railway Co. 166 id. 580.

The effect of this suit, if an injunction should be awarded, would primarily be upon the persons enjoined, but its practical and ultimate effect would be upon the real estate. If the injunction did not have that effect it would be useless. V^hile it would restrain the persons from acting, it is clear that the resultant effect on the property was the end sought. If the object of the suit were to compel the removal of a building from the real estate it would scarcely be contended that real estate would not be affected thereby, and it seems equally clear that where an injunction is sought to prevent the removal or physical disturbance of a part of the real estate the suit is one which “may affect real estate.” By such an injunction the court would, so far as matter of substance is concerned, deal directly with the real estate itself.

As we are of the opinion that the superior court was without jurisdiction, for the reason that the suit could under the statute be properly brought only in DeKalb county, it is unnecessary to consider the other propositions which have been urged upon our attention.

The decree will be affirmed.

r, Decree affirmed.