*1 vacated, their the defendants shall be the defendants refile permitted merits if such is desired. answer and the cause to a trial proceed then all rules are for —a geared have what parties procedural Otherwise, trial on shall remain judgment appealed the merits. in full force and effect.
Reversed and with directions. remanded CRAVEN, TRAPP, P. J., and J., concur. Company, Barker,
Bohn Aluminum & Brass Lewis Plaintiff-Appellee, President of Local No. 760 the International Union United Automo bile, America, Workers of De Aerospace Agricultural Implement fendant-Appellant.
(No. Fourth 1972. February District Katz, Friedman Friedman, & A. M. Chicago, Irving Katz (Harold Goodman, Zenia counsel,) appellant. S. Pearman, Paris, & Gibson, Anderson, Gibson Massey, Robert L. for appellee. of the court: opinion SMITH delivered
Mr. JUSTICE circuit 5,1970, On filed May plaintiff-corporation court Cass allowed date, the circuit
order and On a permanent injunction. and without without notice motion for temporary restraining dissolve it. bond and the defendant a motion thereafter denied issuing is from action of the court The order for its dissolution. straining order and in the motion denying May filed Notice of expired by May its own terms on when the *2 functus officio. at Beards- in Cass The plaintiff operates manufacturing plant repre- union labor which town the defendant is the of president 1970, union members sents the that In March plant. of employees a dis- result of The strike was a went on strike to obtain new contract. dis- underlying employment. over the terms and conditions of pute must initial inquiry Our between the has since been settled. pute parties is an appealable be or the trial court by not order entered it is We conclude that order under of our or rules. any statutes provision not. 307, 1969, taken Ill. Stat. under Court Rule Supreme Rev. 110A, right. interlocutory appeals relates to as par.
Ch. which follows: granting, of that reads as applicable provision “(1) section modify to in modifying, dissolve refusing, dissolving, or * * a under Rule 308 ”. made to junction; attempt No was was Rule 308 which provides permission. interlocutory appeals followed, herein said relates not is not and accordingly before us to that rule. statutory provision term “temporary restraining order” time in 1967
governing it statute for the first appeared in our par. addition of 3—1 Ill. Rev. Stat. ch. par. to statute. 1, et seq. injunctive that three orders Since time we had types each, is, injunc created a permanent statute with rules to that relating tion, a Section one of writs of the cited circuit courts the issue grants power statute injunction. relates injunctions”. Section to “preliminary three of the statute Section three-one the statute relates term into 9 of same statute “restraining par. order” entered It which not the statute a dis requires was included in 12 of par. under “injunction” damages
solution of an are obtainable Vision, Inc. injunction. statute wrongful for the tire (House of Hiyane, It likewise noted that a tem 468.) Ill.2d N.E.2d not of Rule 307 porary language order is included above us of differentiation quoted. It strikes between these plain used intentionally, deliberately three was types legis and no reach purposefully fancy interpretation required lative intention. is, course, “restrain, refrain, stay
It and en true that the words join” interchangeably under certain circumstances may be used Services, Inc., synonymously. v. Law Research 270 N.E.2d (Wiseman Maida, follow, Valente v. 24 Ill.2d 164 N.E.2d 538.) It does however, that or can because be they synonymous they always reading used a careful synonymously. It does not require of those cases to indicate that the factual situation there discussed was utterly Both orders were foreign “temporary restraining order”. Maida patently brought Act. pursuant par. 3—1 our Injunction was decided already before this section Wiseman did not pur was bom. to be under port Both sought enjoin the prosecution 3—1. case until particular No other determination of previous litigation. further or additional action was If the requested or required. granted, This is far purpose accomplished. removed the temporary requires order which we and which consider and, further and additional action to have substantive as any pointed effect Valente, out in when we the form of look to the substance rather than action, we find that the in Valente Wiseman was an substance injunction. The substance of the order which consider a temporary we order that requires beneficiary further action on the part *3 any before result on the merits is that an satisfactory reached. We think examination in our Act will this. just demonstrate “ * * * A temporary restraining order under 3—1 expire by its terms within such time entry, after not to as the exceed 10 days, fixes, order, unless within the time so fixed cause good for shown, is a extended for like or unless the period against whom party order is directed consents that it bemay longer extended for a period”. This same provides: section also “In case a restraining order temporary granted notice, without the motion for a shall be preliminary set down for at the hearing possible earliest time and takes precedence of character; all matters older of the same except matters when comes on for hearing the who obtains re party temporary straining order shall a in proceed application preliminary and, so, he junction if does do not the court shall dissolve the temporary * * * Thus, order a restraining where there is restraining ”. temporary order, a is but to a preliminary hearing or temporary preliminary injunction and unless the one who obtains the temporary restraining order with proceeds application preliminary injunction, the court shall dissolve the temporary temporary days on two hearing be dissolved the court after order likewise reading who obtained it without notice. A clear to the party notice indicates order without temporary restraining that a these provisions is the and it more than a order of court preliminary or under Rule injunction which is temporary permanent appealable do not deal in this concluding that we with an order appealable 2d, 1153: we are aided statement in following p. Vol. Amjur an from an or permit appeal granting denying “While some statutes order a distin- order is temporary injunction, temporary restraining a to furnish the a the statute does not guished temporary from basis for an from an appeal relating temporary restraining order Also, ALR3d, in 19 is stated: “An order p. following order”. face, is, order on its inter- granting continuing temporary restraining or nature, since there remains a determination of the locutory pending relief, injunctive or and the ma- applicant’s right temporary permanent has been discussed jority recognize cases which or point support lies ordinarily the rule that no from an order appeal granting, continuing, dissolve a order or its or equivalent. orders, more, Such finality statutes or rules satisfy defining for the and a number of cases have held purpose appeal; statutory or provision rule an order permitting interlocutory relating has no deal- permanent application to orders ing with orders”.
The very fundamental of appellate review the desire resolve case on the merits. Appeals therefore from interlocutory excep- tions to that The statutory rule. addition of the loudly unusual, that its issuance speaks should be should be for purpose maintaining quo status places burden on the one the order obtaining as proceed as with a expeditiously possible on the merits for a temporary or a injunc- permanent tion. The order entered died its own specific terms. The statute pro- vides for its Its demise. short life early statutory that it suggests intended to be The time limits appealable. set out as a matter practical preclude it is not demise. Since appealable, then the issu- ance the denial of such temporary without notice and reaches without bond never the merits of a controversy injury *4 results from the damage improvident or improper entry of such an order statute our at the moment which precludes proper relief of a suit for In by way damages. the instant the trial court a motion dissolve temporary restraining denied order. The determi- nation of whether that was a restraining order valid order remains to be on a different and in a different forum day in a different suit determined merits. after a on the and it is dismissed. hereby this must be
Accordingly, dismissed, Appeal
TRAPP, J.,P. concurs. dissenting: CRAVEN
Mr. JUSTICE that the issuance of agree
I refusal to it from subsequent dissolve is immune the circuit court it, I see such action In on As reviewable. appeal. review N.E.2d, Ill.2d, 44779, Docket Cook v. No. Illinois Ogilvie, Supreme affirmed issuance of a Court review discussed, was not question reviewability specifically Although review. there was issue here is not that the moot. a consider- majority agree it on the basis of case we should deal with the merits and
ation statutory provisions the several applicable within purview orders. and temporary injunctions Rev. Stat. 2a of Ill. contains that which is referred Section ch. That enactment was Anti-Injunction as the Illinois Statute. a declara enacted legislature originally with reference tion in controversies out of restraints judicial arising concerning use of I view this employment. conditions enactment as a clear policy terms or discouraging judicial aimed at intervention in statement labor matters. 3 with reference to the Further, injunctions in sec. statute (par. it Stat. that no 1969), provided Ill. Rev. court should grant ch. notice unless it from the previous appears complaint accompanying application rights of the plaintiff or affidavit the injunction unless was issued without notice. unduly prejudiced bewill section broadened the to this limits prohibiting amendment A 1967 that such provide should not be from facts shown specific it a verified appears unless issued that immediate and will irreparable injury result or affidavit complaint notice. applicant added to the sec. 3—1 was statute providing Also in for and the limitations on the issuance of the procedure This statute provides: granted without notice to “No temporary facts clearly appears specific unless shown by party adverse irreparable the verified imemdiate or by affidavit will result loss, before notice can damage applicant injury, *5 had a thereon. hearing Every restraining be served and temporary notice shall be indorsed with the date and hour order without granted issuance; filed in the clerk’s office of shall be forthwith and entered record; define the and state it and injury why shall is irreparable notice; and granted order was without why expire by time after entry, terms within such not to exceed 10 as the court days, order, fixes, shown, within the time so fixed the for good unless cause is a unless the period party against extended for like whom the order that it be extended may is directed consents for a longer The period. shall be entered reasons for the extension In case record. a temporary notice, the motion for a restraining granted order preliminary shall be set down for at earliest possible ” * * * time order here involved restraining The was a temporary sought by motion to this to be statute and the order pursuant entered was purported aspects in accordance statute and procedural purports to in with its have been issued accordance terms and provisions. affidavit and filed this case complaint alleges with some spe- defendant, and of the doings certain acts but it is cificity also with replete instance, conclusions of the For it many pleader. is asserted that the and others continued a campaign defendant of intimidation inter- and ferring ingress egress by trespassing with and damaging plaintiff’s harm asserted relates to irreparable property. conclusion that un- defendant is and such enjoined, less the restrained conduct will continue and great irreparable damage and will cause to the plaintiff. The affidavit does relate several factual support incidents. It does of the allegations complaint, however, with amplify reference but concludes damage merely irreparable customers of the finished don’t, must have their if products they company the com- damage thereby. will suffer pany it, it
As an examination patent I view complaint no reason good affidavit that existed for the issuance of a temporary order without notice. This complaint and motion for the order were filed temporary May 5. complained of relates to the period of the defendant conduct commencing on March act specific complained and the last occurred on April as to immediately inquire should whether there We were other acts be- May 27 and 5 that were omitted from April tween the complaint; none, justification were what there for seeking temporary without notice when last complained act ex order was parte sought April obtained on 5. May time and adequate there was Clearly, opportunity for notice. conduct of the defendant such that a may temporary
It be that the justified, would be upon indeed trial the issue the would have been entitled to plaintiff injunction. even a That should permanent issue trial on the merits. await a of the action of the trial court in issuing validity notice order without measured eventual right relief, is such ex action parte nor clothed with the plaintiff presump- The sole test of the validity. validity
tion of of the action of issuing order without and without bond is alone standing and the affidavit such a clear established *6 and intervention necessity judicial compelling extraordinary, drastic, summary writ so as prevent irreparable damage. agree indeed notice is system with the defendant that so fundamental to our of juris- judicial authority exercise notice and without prudence be heard under circumstances where opportunity be a rare circumstance should indeed. case is not possible, such a circumstance. the court in v. Veterans Skarpinski Foreign As noted Wars (1951), 98 N.E.2d notice is a fundamental
343 to the Ill.App.271, requisite judicial power: exercise of
“In the most
primitive
justice, one of
concepts
the fundamental
judicial
the exercise of
over
requisites
authority
person
prop-
erty
exceptions
rare,
of another
notice.
to this rule are
indeed.
cases
embrace
where
stroke
They
pen, movement of the
hand, or a
de force executed
overnight
tour
defendant intends to
litigation
can
the substance of the
destroy
and thus defeat the
* * *
court to
justice.
of the
power
to test
analysis,
necessity
“In the last
for the issuance of an injunc
notice, the
must ask whether in the
tion without
minutes or hours
a defendant’s
defendant
procure
appearance,
could and
required
seriously
that which would
obstruct the court’s
would do
to deal
power
* *”
#
the issue in
effectively
dispute.
with
justly
above
statutory
quoted
numerous cases there-
provisions
indicate a legislative policy precluding temporary restraining
under
of these various
legislative history
without notice.
shows
provisions
to issue
authority
injunctions
judicial
decisions,
me,
orders has been
restricted.
it seems to
progressively
Judicial
been
restrictive with reference
actions re-
progressively
judicial
acts and
of an individual
enjoining
without notice
straining
doings
cases are:
Representative
him.
Dist.),
Yates
342
435
607 222 v. N.E. Dist.), Miollis 2nd( Schneider 420 (1966), Ill.App.2d 77 2d 715 36 (1953), & Mfg. v. Co. Stephens-Adamson
Schaefer
Schaefer
310
575
Dist.), 183 N.E.2d
Ill.App.2d
(1st
(1st
271
Ill.App.
Veterans
Wars
Skarpinski v.
Foreign
(1951),
Dist),
There are cases of an the issuance course wherein to which Those compelled. without notice has plaintiff prior made cases decided part reference are for the most issuance of statutory provision limiting the inwas Finally, labor dispute should be noted this Beardstown, known to of and Illinois. defendant was an employee affidavit, nor plaintiff. nor There no basis in this complaint, in the facts of notice. pleaded, would in any way giving excuse
The majority review immunizes the court from direct action trial because the order and not a entered was a temporary restraining order temporary injunction. Both, course, Presum- interlocutory orders. ably, under same affidavit majority opinion the same pleadings could have than a produced a rather writ called a temporary review- restraining order and been expressly such would have able under review, it seems to Supreme Court Rule For purposes me the difference in but pure semantics. Wiseman Inc., Service, Law Research 270 N.E.2d Ill.App.2d
this court substance, semantics, only acknowledged *7 proper concern trial court that determining appealability. asked stay a trial and and restrain further enjoin prosecution of the case. We reviewed under Rule 307 said: “* #* It seems to us on denial further reflection an and thus an interlocutory order refusing
within
context
c.
of Supreme Court Rule
Ill. Rev. Stat.
110A,
which provides
that ‘An
be taken
Appellate Court
granting,
from an
interlocutory
(1)
modifying,
refusing,
modify
to dissolve
dissolving,
* *
injunction;
Even if
the open-sesame-
*’.
defendant had not used
‘enjoin
word
mean
and restrain’
rule,
‘stay’
invoke this
the words
about
allowed,
would
same
and had a
effect
alone been
‘stay’
Maida,
been to
24 Ill.
‘enjoin’ further
Valente
proceedings. See
”
* *
*
App.2d
For the reasons cannot concur in the action expressed, I circuit would court of Cass appeal. judgment reverse County. People v. Y. T. Plaintiff-Appellee, Illinois, the State Jr., Defendant-Appellant.
Palmer, (No.
Fourth February District