Summary
finding the grant of a preliminary injunction is inappropriate where it "in effect disposes of the merits of the controversy between the parties"
Summary of this case from Guns Save Life, Inc. v. RaoulOpinion
Gen. No. 39,746.
Opinion filed December 15, 1937. Rehearing denied December 28, 1937.
1. INJUNCTIONS, § 186 — nature of interlocutory injunction. An interlocutory injunction is merely provisional in its nature and does not conclude a right.
See Callaghan's Illinois Digest, same topic and section number.
2. INJUNCTIONS, § 199fn_ — what effect may be of order in temporary form. Order in suit for injunction, although in form declared to be temporary, may in effect dispose of merits of controversy between parties.
3. REFERENCE, § 53fn_ — where court's order improperly overruled objections to be filed nunc pro tunc to master's report. Where suit for injunction had been referred to master and later leave granted defendant to file nunc pro tunc, as of date of decree entered in case, written objections to master's report, it was error for court to order that on filing of objections same were overruled nunc pro tunc, since no objections were filed and none presented to the court.
Appeal by defendants from interlocutory order of the Superior Court of Cook county; the Hon. WALTER T. STANTON, Judge, presiding. Heard in the third division of this court for the first district. Reversed and remanded with directions. Opinion filed December 15, 1937. Rehearing denied December 28, 1937.
HAROLD L. LEVY, JOHNTRY FITZGERALD, and GRENVILLE BEARDSLEY, all of Chicago, for appellants; GRENVILLE BEARDSLEY, of counsel.
HAAS LEFFMANN, of Chicago, for appellee; PAUL H. LEFFMANN, of counsel.
Defendants appeal from an order entered by the court for a temporary injunction restraining the defendants from entering plaintiff's place of business, harrassing, hindering, molesting or interfering with plaintiff, its agents, servants or employees; impeding, hampering, hindering or harrassing plaintiff in the conduct of its business; appearing with, or causing others to appear with banners, placards, posters, signs or notices of any kind, nature or description, intended, calculated to interfere with, impede, harrass or hamper plaintiff in the operation or conduct of its business; exhibiting, or causing to be shown, exhibited or carried, any sign, placard or poster upon which appears the statement, "This place is unfair to organized labor," or words of similar import; making any statement that "plaintiff is unfair to organized labor" or a statement of like import or meaning. This was prayed for by the plaintiff in its bill of complaint.
From the record it appears that the matter in question was referred, upon the issues formed upon the plaintiff's bill of complaint and the defendants' answer, to a master in chancery who, on July 16, 1937, filed his report, and thereafter the court approved the master's report and entered an order granting the injunction as prayed for by the plaintiff.
It appears from evidence presented to the master in chancery that in September, 1936, a strike was called by defendants against the plaintiff, and that two pickets were posted by defendant, one on the street in front of plaintiff's restaurant and the other at the rear entrance to plaintiff's place of business, who carried banners upon which appeared the following:
"This place is unfair to organized labor, Local 484, Hotel and Restaurant Employees International Alliance; Local 278, Bartenders' International League of America, affiliated with American Federation of Labor, Illinois Federation of Labor and Chicago Federation of Labor."
The disputed question is whether or not the employees of the plaintiff desired to join the union, one of the defendants in this cause. Plaintiff permitted representatives of the union to enter its place of business for the purpose of inducing the waitresses who worked for plaintiff in its restaurant business to join the union, which they refused to do, and the defendants called a strike because the plaintiff refused to discharge the employees and employ union help. However, we are not expressing an opinion upon the merits of the controversy for the reason that from an examination of the record we find the chancellor has granted the relief prayed for in the bill of complaint.
This question is before us upon the theory that the injunctional order of the court was an interlocutory one and granted for the purpose of permitting consideration of any further proceeding by the parties and in order that the matter might remain in statu quo until a final hearing.
The Supreme Court in the case of People v. Standidge, 333 Ill. 361, made this statement upon the question: "An interlocutory injunction is merely provisional in its nature and does not conclude a right. It usually stands as a binding restraint until rescinded by the further action of the court. Its object is to preserve the subject in controversy, but it is not decisive of the cause upon the merits. The court merely recognizes the fact that, without expressing a final opinion, a sufficient showing has been made to warrant the preservation of the property or the rights in issue in statu quo until a hearing may be had upon the merits of the cause. The granting of an interlocutory injunction necessarily rests largely in judicial discretion, to be exercised in view of the facts of the particular case. 1 High on Injunctions, (4th ed.) secs. 4, 5, 5a, 11; 2 Words and Phrases, (2d series) pp. 1149, 1150; 14 R. C. L. p. 312; Penkala v. Tomczyk, 317 Ill. 356; Baird v. Community High School District, 304 Ill. 526." From this rule announced by the Supreme Court it is clear that an interlocutory injunction is merely provisional in its nature and does not conclude a right. The order of the court, although in form declares the order is a temporary one, in effect disposes of the merits of the controversy between the parties.
There is another question here regarding which we believe the court erred, and that is as to that part of the order granting leave to the defendants to file nunc pro tunc as of the date of the entry of the decree, written objections to the master's report. The court in the order states, "and the court being advised of the nature and content of such objections, orders that upon the filing of such written objections same be and hereby are overruled nunc pro tunc as of this date." Since no objections were filed and none presented to the court, we are of the opinion that the overruling of the objections in the manner indicated was erroneous. For the reasons stated the order is reversed and the cause remanded with directions to the court to proceed to a further hearing and enter such final decree as would be justified by the record.
Reversed and remanded with directions.
DENIS E. SULLIVAN and HALL, JJ., concur.