24 N.E.2d 162 | Ill. | 1939
The plaintiff, Gertrude M. Schuler, by writ of error, seeks a review of an order of the superior court of Cook county dismissing her petition in a cause in which she sought to enjoin the defendants from further performing a contract entered into by the defendant board of education and the Oak Park Junior College. On appeal to this court on the merits a permanent injunction was awarded. (Schuler v. Board of Education,
Plaintiff concedes the Civil Practice act does not contain an express provision authorizing this court to review this record by writ of error. She does contend that section 8 of article 6 of the constitution authorizes assumption of jurisdiction herein by writ of error. The constitution of 1848 divided the State into three grand divisions and directed the Supreme Court to hold at least one term of court annually in each grand division. The present constitution follows the same division and by section 8 of article 6 directs that appeals or writs of error may be taken to the Supreme Court in the grand division in which the case is decided or, by consent of the parties, to any other grand division. This section merely designated the grand division to which appeals or writs of error might be taken in the exercise of the appellate jurisdiction conferred by other constitutional provisions or by statutory enactments.
Plaintiff also urges that the order dissolving the temporary injunction was provisional in its character, in that its ultimate validity and enforcement was subject to the final decree entered on the merits. She predicates this upon the proposition the mandate of this court awarding a permanent injunction establishes that the temporary injunction was wrongfully issued and the decree on the merits nullifies the order assessing damages. Section 7 of the Courts act of 1874 (Ill. Rev. Stat. 1937, chap. 37, par. 12) is referred to as furnishing the basis for that contention. That section vests this court with power and authority to *389
carry into complete execution all its judgments, decrees and determinations in matters within its jurisdiction according to the rules and principles of the common law and of the laws of the State. For that section to have application it would be necessary to hold that the adjudication of the suit on its merits also decided that the order dissolving the temporary injunction and assessing damages was erroneously entered. There is a marked distinction between the issue presented on an application for a temporary injunction, or on a motion to dissolve such, and the one where the cause is being heard on the merits. On the application for a temporary injunction, or a motion to dissolve, it is only necessary that the party in whose favor the restraining order is sought show, in the statement of his case on the merits, that he raises a fair question as to the existence of his rights. He must claim and satisfactorily show to the court that the matter out of which his asserted rights arise should be preserved and held in statu quo until the cause can be disposed of on its merits. (Nestor Johnson Manf. Co. v. Goldblatt,
Reference is made to section 8 of the Courts act of 1874. (Ill. Rev. Stat. 1937, chap. 37, par. 13.) This section is not applicable because the authority therein vested in this court to issue writs of error and other writs is limited to those cases in which it has jurisdiction.
Plaintiff urges that if we conclude a writ of error was the wrong method of procedure then our rule 28 (
Plaintiff's final contention is that if this court concludes it has no jurisdiction, then the cause should be transferred to the Appellate Court. The order sought to be reviewed by writ of error was the order of dismissal of plaintiff's petition and the only relief prayed for in the petition was to vacate and set aside the order assessing damages for the wrongful issuance of the temporary injunction. To grant the prayer of plaintiff's petition would be to review the question whether the judgment assessing damages was erroneously entered. There was no appeal from the order assessing damages and it became conclusive upon the question of the wrongful issuance of the temporary injunction. A transfer to the Appellate Court is impossible.
This court not possessing the jurisdiction to review by writ of error the action of the superior court in dismissing plaintiff's petition to vacate the prior order assessing damages, the motion of defendant in error to dismiss the writ of error is allowed.
Writ dismissed.