148 Ill. 372 | Ill. | 1894
delivered the opinion of the Court:
The only error insisted upon by counsel for appellant and argued in his brief is the action of the Circuit Court in overruling the motion for a continuance. The motion for a continuance was based upon an affidavit made by the president of the appellant corporation, from which it appears that the principal or senior counsel of the complainant was a member of the State Senate and in actual attendance upon a session of the General Assembly at the Capital of the State, and had been employed by complainant as its solicitor in said suit prior to the commencement of the said session of the General Assembly, and that the presence and attendance of said solicitor in court were necessary to a fair and proper trial of said cause, and that complainant could not safely proceed to the trial of said cause in the absence of its said solicitor. The affidavit conforms to the requirements of sections 46 and 47 of the Practice Act. (2 Starr & Cur. pages 1811, 1812).
The statute provides that, “on the filing of such affidavit, the-court may continue such suit.” The word “may” must here be construed to mean “shall,” and it is not discretionary with the court to refuse or grant the continuance. (St. L. & S. E. R. W. Co. v. Teters, 68 Ill. 144; Wicker v. Boynton, 83 id. 545). It is not necessary, under the statute, to state the facts and circumstances. (Wicker v. Boynton, supra).
Counter affidavits were filed for the purpose of contradicting the affidavit for continuance, but counter affidavits cannot be received for such purpose upon a motion for continuance. (Wick v. Weber, 64 Ill. 167; Quincy Whig Co. v. Tillson, 67 id. 351). The affidavit for continuance must state that the counsel, who is a member of the Legislature has been actually employed prior to the commencement of the session. (Stockley v. Goodwin, 78 Ill. 127). Such statement is made in the affidavit in this case.
In view of the provisions of the Statute, and the decisions construing them, and the conformity therewith of the affidavit filed below, we think that it was error to overrule the motion for a continuance. But it is not every error, which will work a reversal. Where this court can see, that the error committed in no way injured or prejudiced the defeated party, and that the result must have been the same if such error had not been committed, it will not order a reversal. We are of the opinion that, in the present ease, the complainant was not harmed by the error complained of, because the bill upon its face showed a want of equity and that the remedy was at law.
The bill, as set out, in the record shows that the appellee was chief of the police of the city of Chicago, and that he was acting through his subordinates, who were police officers of said city, in the matters in reference to which it was sought to enjoin him. As a general rule, equity will not enjoin the exercise of police power given by law to the officers of a municipal corporation, or interfere with the public duties of any of the departments of government, or restrain proceedings in a criminal matter. (Chicago v. Wright, 69 Ill. 318; Poyer v. Village of Des Plaines, 123 id. 111; Davis v. American Society, 75 N. Y. 362; Moses v. Mayor of Mobile, 52 Ala. 198; Garrison v. Atlanta, 68 Ga. 64.)
But aside from this consideration, the bill seeks to enjoin the commission of a trespass or of threatened trespasses by the same person or agency, and thereby shows upon its face that complainant had a complete remedy at law. It alleges that complainant had leased a hall and fitted the same up for a place where brokers might meet to carry on their business, and for the purpose of renting them desk-room, and that it sublet desk-room in said ball to various persons, and that its. sole business was the subletting of said hall, etc. Hence the injury suffered would be nothing more than a loss of the fair rental value of the premises leased. Whatever injury might be done to the business of complainant could be determined in an action at law. The loss suffered would be susceptible of compensation in damages. There is nothing upon the face of the bill to show that the injury to complainant would be irreparable. It is true, that the bill contains a general allegation of irreparable damage, but there is no allegation that the defendant is insolvent, or unable to respond in damages to the amount of loss suffered. A court of equity will only entertain a bill to enjoin a trespass to prevent a multiplicity of suits, or to prevent irreparable injury. It will not interfere to prevent a trespass upon the ground of irreparable injury unless the facts and circumstances are alleged, from which it can be seen that irreparable injury will be the result of the act complained of, and that there is no adequate remedy at law. (Poyer v. Village of Des Plaines, supra; Moses v. Mayor of Mobile, supra; Winter v. Frankel, 39 La. Ann. 1059; Goodell v. Lassen, 69 Ill. 145.) Where the injury is .not irreparable, and is susceptible of perfect pecuniary compensation, an injunction will not be granted to restrain a mere trespass. (Schurmeier v. St. P. & P. R. R. Co. 8 Minn. 115).
To warrant interference upon the ground of a multiplicity of suits there must be different persons assailing the same right, and not a mere repetition of the same trespass by the same person, “the case being susceptible of compensation in damages.” (1 High on Inj. sec. 700). “If the right is disputed between two persons only, not for themselves and all others in interest, but for themselves alone, the bill will be dismissed.” (2 Story’s Eq. Jur. sec. 857). If the right claimed affects numerous parties, equity will sometimes enjoin a continuance of the litigation because the judgment against one of the parties would not be binding on the others. But where there are continued suits between two single individuals, arising from the separate repetition of trespasses, equity will not interfere by injunction where the right has not been established at law, because a judgment in any one of the suits would be evidence in all the others. If the right has not been established at law, the necessity of intervention does not exist. (Moses v. Mayor of Mobile, supra; Poyer v. Village of Des Plaines, supra; Pratt v. Kendig, 128 Ill. 293). It is manifest from the allegations of the bill in the present ease, that the complainant is seeking to enjoin the repetition of trespasses by the same defendant, furnishing grounds for separate suits, so that there is not shown that multiplicity of suits which induces equity to interfere. (McCoy v. Chilicothe, 3 Ohio, 379).
The question then arises whether the want of "equity upon the face of the bill, which shows a complete remedy at law, could be taken advantage of upon the hearing in this case, the hearing having been, not upon demurrer to the bill, but upon bill, answer and replication and upon proofs offered in-open court. There being no certificate of evidence, it does not appear what the proof was upon the merits. The general rule is, that the party seeking to sustain the decree should preserve the evidence. (Marvin v. Collins, 98 Ill. 510). But,, here, if the complainant upon the hearing had introduced proof sustaining all the allegations of the bill, its case would have been no better than it was without any proof, because the proof could show no more equity than the bill itself showed upon its face. In Walker v. Ray, 111 Ill. 315, we said: “A bill wholly insufficient to authorize the relief sought is never-aided by proof. If every allegation of a bill that shows a want of equity is proved, the proof shows no more equity than the-bill; and if the proof goes beyond such a bill as establishes ground for relief, the relief cannot be granted because the allegations and proofs do not correspond. * * * It is therefore immaterial whether there was a certificate of evidence or not, or whether the court below was or not warranted in finding by the decree that the allegations of the bill were proved,, because, if they were, they constituted no ground of relief.”
Where a bill, on its face, shows no ground for equitable relief, it is proper, on the hearing, to dissolve the injunction and dismiss the bill. (Harris v. Galbraith, 43 Ill. 309). Where, as here, the objection to the granting of equitable relief is the-existence of an adequate remedy at law as shown by the bill itself, such objection to the jurisdiction must be taken by the pleadings. (Nelson v. First Nat. Bank of Chicago, 48 Ill. 36.) But the objection may be made, not alone on demurrer to the-bill, but it may be specially relied upon in the answer, (Creely v. Bay State Brick Company, 103 Mass. 514), and in the case at bar it is specially relied upon in the answer. Upon turning; to the answer, as it appears in the record, we find the following allegation s “This respondent is advised by counsel that the injunction * * * to * * * restrain a threatened trespass is without authority of law, and that complainant has an adequate remedy at law for the acts complained of in the bill of complaint, and that a court of equity is wholly without jurisdiction in the premises, and therefore prays that it (he) may have the same benefit * * * of these objections as though it (he) had specially demurred to the bill.”
We are of the opinion, for the reasons here stated, that the want of equity upon the face of the bill was properly taken advantage of upon the hearing, and that there was no error in dissolving the injunction and dismissing the bill.
The decree of the Circuit Court is affirmed.
Decree affirmed.
