39 Ill. App. 248 | Ill. App. Ct. | 1891
The errors complained of in the Circuit Court • are:
1st. In dismissing the original and supplemental bills.
2d. The assessment of damages in defendant’s favor on dissolution of the injunction and without a hearing of the case on its merits.
3d. That the assessment of damages were improper and excessive.
First. We are of the opinion that the original and amended bills as filed made a case for equitable jurisdiction, at the least by way of injunction. It was averred in the original bill that a majority of the directors of school district No. 9, who were made parties defendants to the bill, intended by fraud and indirection to pay out the public money to that district belonging through one Fred Jamison, who was by them employed, to one James N. Derr, as an assistant teacher and in fact principal of that school, and who at the time of such alleged employment held no certificate as a teacher. In such ease if no injunction had been sought equity will grant relief. Board of Education et al. v. Arnold, 112 Ill. 12.
Upon the same principle equity would restrain the payment of any of such public moneys for such unlawful and for any fraudulent purpose, to any one by the board of directors of such district.
In Jackson v. Norris, 72 Ill. 364, it was held that a court of equity will entertain a bill on behalf of taxpayers for relief against an act of misappropriation of public, corporate funds after it has been committed, as well as to enjoin the commission of such act, when meditated.
It was further held in that case, that courts of chancery will interfere to prevent municipal councils from abusing powers relating to property and funds intrusted to them, to be exercised in conformity with law, for the benefit of the incorporated place or its inhabitants, and will relieve against fraudulent disposition of its property and the authorities cited in support of the opinion, which would seem conclusive upon that point. Hence, the Circuit Court erred in dismissing the original and amended bills for want of equity. The court also erred in sustaining the demurrer to complainant’s amended bill.
The fact that the money had been paid to Fred Jamison under the circumstances in the answer and amended bill set out, in no manner prevented the relief sought by complainants. Neither Jamison nor the school directors could defeat the injunction or complainants’ right to relief by their own wrongful act in paying the money, if the allegations of the bill were sustained upon hearing the case upon its merits. Board of Education v. Arnold, supra, and cases cited.
It is a familiar principle that equity once having obtained jurisdiction will retain it until complete justice is done, even though adequate relief can be reached only by a personal judgment. Hurd v. Ascherman, 117 Ill. 501; Pool v. Docker, 92 Ill. 501.
Second. We think the Circuit Court also erred in dismissing the original bill, on the disposition of the motion to dissolve the injunction, and refusing to hear evidence of the complainants as offered upon the matters set up therein. The cause was at issue upon its merits, and no demurrer having been interposed to the original bill, complainants had a right to be heard upon their issues. The injunction therein prayed was not the only relief sought, or prayed -for, and the suit still remained in the Circuit Court for hearing upon the issues joined, after the dissolution of the injunction, as before. It is clear that the dissolution of a preliminary injunction can not affect the ordinary progress of a suit in equity, it being collateral to the main object of the bill. It by no means follows from the dissolution of the preliminary injunction that the complainants are not entitled to other relief sought, and that can only be determined by a hearing upon the merits, which may result in granting the relief sought, with a perpetual injunction also, as frequently occurs in practice and is fully warranted and established by precedent and authority too familiar to require citation or further comment. To dismiss a bill in such case, without a hearing on the merits, is to cast the complainant in damages for wrong doing in suing out an injunction, for the doing of which he might on the hearing clearly establish his right. Complainants had an undoubted right, we think, to such hearing, for if they established the averments and charges of the hill, as we have attempted to show, they were entitled to relief, and the injunction was not improperly sued out; and if that he so, it is apparent that they should not be cast in damages therefor, upon its dissolution. In such case there could be no breach of the condition of the injunction bond. In the case at bar the injunction was dissolved upon coming in of defendants’ answer denying the allegations of the bill, and the bill thereupon was dismissed, and the claimed damages of $263.65 assessed for the wrongful suing out of the injunction, and a hearing of evidence upon the merits was denied. This we think was error manifestly. Woerishoffer et al. v. S. E. & W. Ry. Co., 25 Ill. App. 84; Fisher v. Tribby, 5 Ill. App. 336; Wilson v. Weber, 3 Ill. App. 125; Terry et al. v. Trustees of H. P. School, 72 Ill. 479; Blair v. Reading, 99 Ill. 600.
The correct rule as we think was stated by Judge Pleasants in Gillett v. Booth, 6 Ill. App. 429, viz.: “ When an injunction is the only relief sought and it is dissolved on motion upon the hill alone, which operates as a demurrer for want of equity and admits all the facts alleged, the order of dissolution is a final disposition of the case and the formal dismissal of the bill may regularly follow, hut not otherwise/ ” which is supported in this State by the following cases: Titus v. Mabee, 25 Ill. 232; Hummert v. Schwab, 54 Ill. 142; Weaver v. Poyer, 70 Ill. 567.
Third. It follows, therefore, that the assessment of damages on the dissolution of the preliminary injunction in the Circuit Court was erroneous for the reasons above set forth, and for the further reason that the evidence fails to show that the attorneys’ fees allowed were the usual and customary fees, or that the attorneys had not an agreement for a less amount, or that appellees had paid or become obligated to pay therefor the amount allowed. In no case could appellees be allowed for their own time or expenses in going to the court or attendance therein. The decree of the Circuit Court must therefore be reversed and the cause remanded with directions to set aside the order sustaining the demurrer to the complainants’ supplemental bill and decree, dismissing the original bill and proceed to a hearing of the cause on the original and supplemental bills on the issues joined and to be joined thereon and in conformity with the views herein above stated.
Be versed and remanded with directions.
Reversed and remanded with directions.
