Phelps v. Foster

18 Ill. 309

• Court: Illinois Supreme Court
• Decided: April 15, 1857
• Status: Published

Opinion

Caton, J.

The injunction in this suit was properly dissolved, for three very good reasons. First. Flo such case was made by the bill, as would authorize an injunction. If the allegations of the bill are true, the sale from Thomas P. Foster to J. W. Foster was void, absolutely, as to creditors, and the complainants had an adequate remedy at law, by attaching the goods; but even if that had not been the case, I am not aware of any principle of equity jurisprudence which will justify the issuing an injunction in such a case, to compel the parties to hold the goods pending a trial at law, to see if they will not be wanted to answer an execution upon a judgment which the complainant hopes to obtain. The bill was devoid of equity on its face. But if this were not so, the injunction was issued without any warrant of law, for no order directing an injunction to issue appears ever to have been made, by any court or officer, authorized to order an injunction. At least, if such an order was ever made, it does not appear on this record. So the clerk issued the writ without authority.

Finally, admitting a proper case was made by the bill, and that the injunction was properly issued, and still it appears the court was right in dissolving it. The sole object of the bill was auxiliary to the action at law; to obtain an injunction to restrain the removal or disposition of the goods till the determination of that cause, which was pending in the same court in which the bill was filed. Flow, under our system, where the same court exercises both common law and chancery jurisdiction, it was proper for the court to take notice of its own records, and see when that action was determined. When that contingency happened, from the very nature of the bill, its final object was accomplished and it ceased to have any vitality. The order of the court, dissolving the injunction, recites that the action at law was dismissed because the process was void, and hence there could be no ground for longer continuing the injunction. The dismissal of the bill followed as a necessary consequence upon the dissolution of the injunction. It was purely an injunction bill, and that, too, of a temporary character. When the injunction was dissolved, the only relief prayed for was denied, and the dismissal of the bill was a necessary consequence. In this there was no error.

I have, with considerable reluctance, come to the conclusion that the court exceeded its power in awarding damages to the defendant and against the complainant. Except in the case of an injunction to restrain a judgment at law, I can find no warrant in the statute for awarding damages upon the dismissal of an injunction bill, and I cannot find authority for sustaining it in the practice of the English court of chancery. The general principles of equity jurisdiction are against it. It is granting affirmative relief to the defendant, without a cross bill, and when the pleadings do not justify it. I regret that it is so, for I think this power-almost indispensable, as a check upon the too free and dangerous use of this writ, which is liable to great abuse; unless the greatest circumspection is used by those invested with the high power of awarding it, which, I regret to say, has not always been the case. Indeed, this writ should very rarely, if ever, be awarded without giving the opposite party a chance to be heard and to file affidavits in answer to the bill, whenever that is practicable.

That portion of the decree which awards damages to the defendants below must be reversed and the balance affirmed, and no costs awarded to either party in this court.

Judgment reversed.