Stephens v. Stephan

Appellate Court of Illinois

Stephens v. Stephan

216 Ill. App. 107, 1919 Ill. App. LEXIS 292

CourtAppellate Court of Illinois

DecidedDecember 3, 1919

DocketGen. No. 25,577

StatusPublished

Cited by1 cases

This text of 216 Ill. App. 107 (Stephens v. Stephan) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Stephens v. Stephan, 216 Ill. App. 107, 1919 Ill. App. LEXIS 292 (Ill. Ct. App. 1919).

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Opinion

Mr. Justice O’Connor

delivered the opinion of the court.

Complainant filed a. bill against defendants praying for an accounting and that defendants be ordered to return certain personal property to him. Afterwards a supplemental bill was filed in which the prayer was the same and included a further prayer that the complainant be decreed to be the owner of - certain real estate. The supplemental bill also prayed that a preliminary injunction be issued restraining the defendants from prosecuting a forcible detainer suit. On the recommendation of the master, the court granted the preliminary injunction. The supplemental bill was answered and on motion of defendants an order was entered dissolving the preliminary injunction. From this order an appeal was prayed and allowed.

The right to appeal from such interlocutory order is entirely statutory. An order allowing a motion to dissolve a preliminary injunction is interlocutory and not final, and no appeal will lie from such order. Lehmann v. Shimeall, 195 Ill. App. 511; section 123, ch. 110, Rev. St. (J. & A. ¶ 8661); Cahill v. Welch, 208 Ill. 57. Counsel for defendants in the argument at the bar conceded that the appeal was not authorized by section 123 of the Practice Act, but contended that it was authorized by section 21, ch. 69, Rev. St. (J. & A. ¶ 6181). This is a misapprehension of the meaning of section 21. That section provides that no appeal from a decree dissolving an injunction shall have the effect to keep the injunction in force unless the appeal is prayed at the time the decree is entered and the court shall so order, or unless it is ordered by the Appellate or Supreme Court, after the appeal is perfected, that the injunction continue in force. That section is intended to cover cases where a final decree is entered which dissolves an injunction.

Counsel for the defendants suggests that the appeal be dismissed with an allowance of reasonable solicitor’s fees to be taxed as costs, and contends that this is authorized by section 123 of the Practice Act: That section provides for the allowance of solicitor’s fees only in cases where an appeal is there authorized but for some reason has not been prosecuted according to law, and does not apply to the instant case. The practice controlling whatever rights the defendants may have in this regard is covered by section 12, ch. 69, Rev. St. (J. & A. ¶ 6172).

Since the appeal is not authorized it will be dismissed.

Appeal dismissed.

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Mr. Justice O’Connor

delivered the opinion of the court.

Complainant filed a. bill against defendants praying for an accounting and that defendants be ordered to return certain personal property to him. Afterwards a supplemental bill was filed in which the prayer was the same and included a further prayer that the complainant be decreed to be the owner of - certain real estate. The supplemental bill also prayed that a preliminary injunction be issued restraining the defendants from prosecuting a forcible detainer suit. On the recommendation of the master, the court granted the preliminary injunction. The supplemental bill was answered and on motion of defendants an order was entered dissolving the preliminary injunction. From this order an appeal was prayed and allowed.

The right to appeal from such interlocutory order is entirely statutory. An order allowing a motion to dissolve a preliminary injunction is interlocutory and not final, and no appeal will lie from such order. Lehmann v. Shimeall, 195 Ill. App. 511; section 123, ch. 110, Rev. St. (J. & A. ¶ 8661); Cahill v. Welch, 208 Ill. 57. Counsel for defendants in the argument at the bar conceded that the appeal was not authorized by section 123 of the Practice Act, but contended that it was authorized by section 21, ch. 69, Rev. St. (J. & A. ¶ 6181). This is a misapprehension of the meaning of section 21. That section provides that no appeal from a decree dissolving an injunction shall have the effect to keep the injunction in force unless the appeal is prayed at the time the decree is entered and the court shall so order, or unless it is ordered by the Appellate or Supreme Court, after the appeal is perfected, that the injunction continue in force. That section is intended to cover cases where a final decree is entered which dissolves an injunction.

Counsel for the defendants suggests that the appeal be dismissed with an allowance of reasonable solicitor’s fees to be taxed as costs, and contends that this is authorized by section 123 of the Practice Act: That section provides for the allowance of solicitor’s fees only in cases where an appeal is there authorized but for some reason has not been prosecuted according to law, and does not apply to the instant case. The practice controlling whatever rights the defendants may have in this regard is covered by section 12, ch. 69, Rev. St. (J. & A. ¶ 6172).

Since the appeal is not authorized it will be dismissed.

Appeal dismissed.

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216 Ill. App. 107, 1919 Ill. App. LEXIS 292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stephens-v-stephan-illappct-1919.

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