*1 COMPANY, INC., BLOCK AND Plaintiff-Appellee, v. STORM PRINTING
COMPANY, Defendant-Appellant. (1st Division) District
First Nos. 62753 cons. Opinion filed June GOLDBERG, J., specially concurring. P. *2 Geraldson, (Robert Joyce, H. Shaw, Chicago & of
Seyfarth, Fairweather counsel), H, for Shanley, C. of Raymond Kelly, Mark A. Lies and James J. appellant. Grossman, Froelich,
Amstein, Gluck, and & Teton Weitzenfeld Minow and (Michael off, B. Tabin, Chicago Ropiequet, R. L. and Alfred Tur both of John Teton, counsel), appellee. for the court: Mr. BURKE delivered the JUSTICE it (Storm) Printing appeals enjoining Storm from an order Company Inc. against Company, Block and from further of an action in (Block), United Northern District the States District Court the Texas, in against Division. suit Block the brought Dallas Storm Judicial subsequent the County, District of Dallas Texas to the County. in Block present by action Block the circuit court of Cook removed action the State court to the United States the Texas District Court. corporation
Storm is the laws maintains organized under of Texas and Dallas, corporation in Texas. is an which principal its office Block Illinois variety is a Wheeling, is located in Illinois. Block merchandiser associations, banks, loan equipment supplies savings and utilized and financial and Storm entered into a contract and other institutions. Block agreed print which Storm distribute certain merchandise and through the distribution catalogs. promotes products the sale of its Block institutions. numerous financial catalogs of merchandise April complaint against in the Storm on Block filed a circuit defectively ground that Storm alleging breach of contract on the in the 220,000 requirements catalogs contrary to the contained produced workmanship. agreement contrary good and to the standards of parties’ and alleged complete printing Storm Block further failed agreement, specified in the time catalogs distribution of in many catalogs that Storm distribute accordance properly did not the contract complaint with Block’s instructions. averred between in Illinois. was formed 20, 1975, May appearance and a motion special Storm filed dismiss for of lack request Storm did a hearing not on the 14, 1975, motion to dismiss. August on Storm submitted an alleging answer parties’ agreement the terms of the are different from represented the terms by Block in its complaint; that the catalogs were completely printed ready in distribution the time required by Block; that default performance in delay caused Block; actions of and that improper catalogs distribution resulted Block’s faulty shipping instructions. Storm further alleged contract was in formed Texas. answer,
Prior to brought an against action Block the County, District of Dallas Texas 1975. Storm Judicial June sought recovery purchase price goods and services rendered to production catalogs of the same merchandise which Block claimed its Illinois defectively printed action to be and distributed. Block subsequently removed suit from Texas State Texas, United States District Court for Northern District of Dallas Division.
On July emergency Block filed an motion in the circuit court for taking to restrain Storm from any further action the Texas State court. On July injunction was granted by an order injunction’s extended the until effect “further order of the court.” pro order was nunc tunc amended *3 the specify ruling. reasons for the court’s filed notice Storm a 11,1975. not, however, injunction from the order on Storm did file 6,1975. 15,1975, the record with this until October October Storm, the finding pursuant motion of the circuit a court made Supreme 304 delaying Court Rule there 16,1975. enforcement the injunction July (Ill. or order of Rev. 1975, 110A, Thereafter, Stat. par. 304.) ch. Storm filed a second notice of from July injunction appeal predicated the order. Storm’s is on the appeal. second notice of
At the outset we consider that the be Block’s contention by comply Supreme dismissed because of failure Storm to Rule 307 which that an appeal from an days be 30 perfected entry by filing from thereof a notice of appeal and the 30 unless time is days record within the same extended (Ill. 1975, by par. 307.) this court. Block offered the in same to this a to dismissthe on October court motion 1975, we which denied. July is We order of are of is a was and appealable purpose final and order. The of the order in Texas The Storm the restrain the action protect jurisdiction jurisdiction is the case and intention to retain
95 language uses for the While the order against interference. grants in fact a the order temporary injunction, a usually pertaining to order entered previous adhere to the permanent injunction. We appeal. denying motion to dismiss the Block’s only presented issues Storm We next consider two option instituting separate that it a action Storm first contends had the in a in the circuit court a Texas State court instead of counterclaim pursuant 38 of the Practice Act. to section Civil separate a action under par. 38.) argues electing Storm to file Secondly, precludes injunction. section 38 trial court’s issuance Supreme Illinois Storm contends that the criteria established enjoining foreign was not satisfied. actions R.R. v. Grand Truck Western Supreme Our Court’s decision James Co., denied, cert. 356, 152 U.S. 3 L. Ed. 2d 14 N.E.2d 358 S. The disposition Ct. controls the of the issues raised. James, Michigan, wrongful a instituted a death resident of reaction, Michigan action in In railroad suit in Illinois. the defendant injunction restraining plaintiff prosecuting obtained an from further plaintiff’s her Illinois action. The a Court allowed motion for counterinjunction enjoining Michigan enforcement injunction. firmly equity decision that a court of has the establishes James
power, circumstances, in appropriate persons restrain within its jurisdiction from instituting proceeding with actions the courts of sister specifically, policy States. More reaffirms this State’s James protect jurisdiction first acquired parties is over the and the merits of the cause. consistently enjoining Illinois courts have refrained prosecuting pending a instituted action in another fraud, convincing proof gross wrong oppression. absent (James Co., v. Grand Trunk Western R.R. 356, 366, 371, 14 Ill. 2d 858, 864, 866.) N.E.2d require similarly decision does not James stringent proving gross wrong injustice, standard of or manifest as Storm, suggested by may enjoin party before Illinois cotut proceeding subsequently further in a pending instituted action sister Jones, People ex rel. Scott v. 343, 255 N.E.2d 397. Moreover, demonstrating has not sustained burden of grounds. that the trial upon court’s order based insufficient *4 alleged in its motion for an that further of the harm, fraud, oppression, irreparable Texas action would result and a possible judgments. party initiating conflict in It has held that a a been subsequently will be if further filed out-of-State action restrained vexatious, prosecution appears oppressive, annoying, harassing, to be unduly progress prior interfere with the instituted local action. (University (1961), 426; Texas v. Morris 162 Tex. 344 S.W.2d
Childress v.
558;
Motor Lines
N.C.
70 S.E.2d
Johnson
v. Superior
Simmons
96 Cal.
844.)
214 P.2d
The trial
separate
court conducted
hearings
two
on Block’s motion and
arguments
entertained
of counsel. The
report
record does not
contain
proceedings. When the
record on
it
incomplete,
will be
presumed that the trial court heard sufficient
evidence and
support its
Any
decision.
arising
doubt
incompleteness
record will be
against
resolved
appellant.
Aetna
Insurance Co. v.
Life
Strickland,
33 Ill. App. 3d
Storm’s argument that section 38 of Civil Practice Act prohibits the issuance of the trial court’s is without merit. Section 38 that a having against any defendant a claim any co-defendant may elect to assert such claim the form of a counterclaim. If par. defendant’s claim action, separate constitutes a cause of the claim may be asserted subsequent independent action. if the claim involves the same facts, operative judicata the doctrine of res may operate to bar a subsequent Stoner, 103; action. Stoner v. 351 Ill. App. (D. 1973), Somers Board F. Supp. Education Conn. Kaufman Section 38 preclude does not protecting Illinois court from jurisdiction in complete order to justice decree and final between the parties. The action Storm Texas and the action instituted subject involve the same Contrary matter the same contract. insistence, Storm’s questions both actions raise identical relative to the conforming printing nature of the and distribution of the merchandise catalogs, the value goods and services rendered minus any credits, justified possible consequential damages incidental and resulting to Block nonconformity. The trial court was not precluded by ordering 38 in that an injunction section issue for the purpose completely in its adjudicating controversy obtained
We have legal significance not discussed the of the Texas removal case to the United States District Court because no issue thereon was raised either of the in the trial in this court or judgment For these reasons the is affirmed.
Judgment affirmed.
O’CONNOR, J., concurs.
97 GOLDBERG, concurring. specially Mr. PRESIDING JUSTICE opinion on reached the above I with the result entirely am accord However, to reach identical prefer I would grounds. legal substantive has no that this court theory by traveling a different road—the result appeal. jurisdiction injunction” 17,1975, preliminary for a July “plaintiff
On on s motion taking any from enjoined and trial court defendant restrained ordered this litigation “until further order of regard action with to the Texas 7,1975, rehearing on August On defendant filed a motion for Court.” 7, 1975, denied On the trial court injunction. August issuance of the 11,1975, filed a notice rehearing. August plaintiff for On motion 17, 1975, 7, and 1975. July August from the orders 6, in this on October was court The trial court record order 15,1975, entry of a further obtained the 1975. October delaying the by the trial court there was for entered or from the court’s order enforcement of 17,1975” 16,1975”; “July “July apparently referring stamped order clerk. by the depends whether necessarily upon of this court firm 17,1975, interlocutory. is I July final or am
injunctional order entered
Rule
interlocutory.
in the
was merely
Supreme
belief that
order
(Ill.
307(a)(1)
interlocutory
granting
injunction.
refers
orders
17, 1975, is
1975,
110A,
July
par. 307(a)(1).)
The order
The trial court
expressly stated to
until further order of the court.
be
at
these
power modify,
amend or vacate
orders
therefore retained the
only
appealed
the order
entry
time after the
thereof. It is
where
finally
and
disposes
controversy
the entire
on the merits
completely
trial
litigation
that if
should
affirmed the
terminates the
so
the order
be
an order
proceed
judgment
court need
with execution of
only
(1948), 401
Armitage-Hamlin Corp.
be
as
v.
may
Roddy
classified
final.
277,
605,
Ill.
308,
(1974),
App.
83
v.
23
N.E.2d
cited Block Block
278,
R.
v. W. Borrowdale
Rotogravure
I that, have considered 301 which “The Rule is by filing initiated No step notice other jurisdictional.” par. 301.) Rule applies judgments. practice terms final The former *6 January provide did not a notice of orders. It provided perfection instead for interlocutory appeal the trial court bond costs. Then also the of the record appellate court 30 days (See within was Ill. mandatory. opinion, In par. my consideration this factor to leads language present conclusion that “the Rule record designated be filed” is necessarily mandatory. time It is this correct before oral a motion of denied dismiss I am of that this Furthermore, was improvidently order entered. this was final order not beyond this an proceed correction. The court to should, open always question may, be raised of its own motion at time. Illinois Gas Co. Weber Northern 10 Ill. shown,
As attempted right above salvage defendant requesting obtaining entry by the trial court of an October pursuant Supreme Rule 304 that there of, from, delaying injunctional enforcement This jurisdiction upon order. order cannot serve confer only appeals Court Rule 304 its terms is applicable “from judgment.” par. 304(a); Paper final see Crane 61, 66, 344 Chicago Stock Co. v. & Co. Ry. Northwestern N.E.2d 461. would, therefore,
I dismiss the for want of