46 Ill. App. 553 | Ill. App. Ct. | 1892
It is urged that the court erred in referring the motion to dissolve the injunction to a master and also in talcing action thereon during the summer vacation, it not being, it is insisted, emergency business.
The practice of referring matters in dispute to a master, is not only entirely piropier, but, with the press of business now before the chancery courts, a thing that to a very large extent must be done. The answer denied material allegations of the bill, and while, as is said by the complainants, no testimony was taken before the master, yet his repiort shows that affidavits were presented upon the hearing before him.
The motion to dissolve the injunction granted in this case, was clearly emergency business, and one which the court not only had a right to pass upon, but ought to have disposed of as spieedily as possible.
If the motion had been one which the rules declared should not be heard during vacation, and if in violation thereof it had been heard, and in consequence thereof a party had been forced to a hearing without a piroper opportunity to prepare therefor, a different question would ue presented. While doubtless for its convenience and that of the public, a court may, to a reasonable extent, arrange its business and the times at which the same shall be transacted as it may think expedient, we are not prepared to hold that it can, by a mere rule, deprive itself during an entire term, of the right to do any but a particular kind of business.
Upon the merits the injunction seems to have been properly dissolved. An injunction will not be issued to restrain a mere violation of a city ordinance. The enforcement of city ordinances is not one of the functions of a court of chancery. The President and Trustees of Waupun v. Moore, 34 Wis. 450; The Village of St. Johns v. McFarlan, 33 Mich. 72; The Mayor of Manchester v. Smyth, 64 N. H. 380; Mayor v. City of Hudson, 7 Paige, 261.
As to whether the contemplated foundry will be a nuisance, depends upon the character of the neighborhood in 'which its erection is. proposed. An iron foundry is not a, nuisance per se. A court of equity will not ordinarily enjoin as a nuisance, the doing of that which is not a nuisance per se, until its character as a nuisance has been established in an action at- law. Dunning v. City of Aurora, 40 Ill. 481; Town of Lake View v. Letz, 44 Ill. 81; High on Injunctions, Sees. 752, 787; Richards’ Appeal, 57 Penn. St. 105; Rhodes v. Dunbar, 57 Penn. St. 274; Bliss v. Kennedy, 43 Ill. 67, 76; Wangelin v. Goe, 50 Ill. 459, 468; Richeson v. Richeson, 8 Ill. App. 204-208.
The trespass by the dripping from the eaves, the defendants declare, would be ended as soon as, by the dissolution of the injunction, they were permitted to complete their contemplated improvements.
The bill was, on the hearing upon the merits, properly dismissed; and the decree of the Superior Court will be affirmed.
Decree affirmed.
