Werner Co. v. First National Bank of Miamisburg

55 Ill. App. 321, 1894 Ill. App. LEXIS 415

• Court: Appellate Court of Illinois
• Decided: November 12, 1894
• Status: Published

Opinion

Mr. Justice Gary

delivered the opinion op the Court.

June 23,1894, the appellee filed in the Circuit Court a judgment creditor’s bill against Alexander Belford, the alleged judgment creditor, to which bill the appellant was made a defendant. An order for an injunction, without notice to anybody, and without any bond, was made by the court the same day, and from that order this appeal is prosecuted. Besides the bill, and some copies of alleged documents, nothing was presented to the court, except affidavits attached, as follows:

“ State op Illinois, 1 County of Coolc, j ' Henry W. Prouty, being first duly sworn, on his oath says that he is the agent in this behalf of the First National Bank of Miamisburg, the complainant, whose name is subscribed to the foregoing bill of complaint; that he has read said bill of complaint and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters and things therein stated upon information and belief, and that as to those matters and things, he believes it to be true.

(Signed) Henry W. Prouty.

Subscribed and sworn to before me this 23d day of June, A. D. 1894.

William G. Wise.

[Notarial Seal.] Notary Public.”

“ State of Illinois, [

County of Cook. ) ’

In the Circuit Court of Cook County. July term, A. D. 1894. The First National Bank of Miaisburg v. Alexander Bedford et al. Gen. No.—

Henry W. Prouty, being first duly sworn, on his oath says that he is the agent in this behalf of the First National Bank of Miamisburg, the complainant in the above entitled cause, and that affiant is advised and believes, and so states the fact to be, that the rights of said complainant in said cause will be unduly prejudiced if the injunction in said cause, and which is prayed for in the foregoing bill of complaint, is not issued immediately or without notice to the defendants in said cause.

• Subscribed and sworn to before me this 23d day of June, A. D. 1894.

William G. Wise,

In view of the many decisions by this court that affidavits like the first affidavit above copied are not sufficient to base action upon (Stirlen v. Neustadt, 50 Ill. App. 378), the appellee, not appearing here, has probably not thought it worth while to attempt to sustain the order appealed from.

As to the second affidavit, when a statute requires that a certain conclusion shall be made to “ appear ” as a ground of proceeding by any tribunal, the facts from which that conclusion follows must be proved to that tribunal, and it should not accept the opinion of anybody else upon that matter. Mackubin v. Smith, 5 Minn. 367; 5 Gilfillan, 296.

We need not dispose of this case on that ground, and therefore confine the present decision to the first ground stated.

We do not, on this record, look into the sufficiency of the bill. How the appellant could be prejudiced by the injunction does not appear, but it had the right to get rid of it. A court of chancery is sometimes very sensitive.

The order granting an injunction is reversed and the cause is remanded, with directions to dissolve the injunction as to appellant.