125 Ill. App. 201 | Ill. App. Ct. | 1905
delivered the opinion of the court.
July 1, 1905, upon a bill filed by appellee, Judge Tuley of the Circuit Court entered an interlocutory order restraining appellant from suing James B. Hobbs upon a certain appeal bond.
It appears that in November, 1904, a judgment in the-sum of $2,000 was entered before Judge Honoré of the Circuit Court in an action at law there pending against appellee and in favor of appellant as administrator of one Lizzie Kolar, deceased. Upon the entry of the judgment appellee prayed an appeal to this court, which was allowed upon condition that appellee file a bond in the sum of $3,000-in 30 days from November 19, 1904, and present to the-court a bill of exceptions within 60 days from the same date. The minute clerk then sitting before Judge Honoré was then and there directed by the Judge to enter said orders, but said clerk did not enter in his minute book nor did he write up any of the orders in the cause after the entry of the judgment. That appellee within 30 days after Hovember 19, 1904, filed an approved appeal bond in said cause, and within the time allotted presented a bill of exceptions therein, which was assented to by the attorneys ' of appellant, was signed by Judge Honoré and was then filed with the clerk of said court. That not until February 18, 1905, when appellee ordered a transcript of record in the suit at law, did it discover that said orders had not been written up; and not until ten days later, when counsel for both parties appeared before Judge Honoré, did it know that the minute clerk had not entered said orders in his minute book. That appellee then moved to have such omitted orders en-' tered nunc protltunc as of Hovember 19, 1904, but the court on March 6, 1905, denied said motion, to which appellee excepted and saved its bill of exceptions and prayed an appeal, which was allowed on bond of $250 being filed.
March 29, 1905, appellee filed its bill, setting up the foregoing facts, alleging that it had a good defense to the suit at law, praying for a decree directing the clerk of said court to amend the record in the said law case, for general relief, and for an injunction restraining all proceedings in the original suit until the matters involved could be determined.
Appellant filed its answer to said bill, excepting to it for want of equity, for multifariousness, and because appellee had a complete remedy at law; and admitted the facts substantially as set forth therein; adding thereto the fact that the motion of February 28, 1905, was renewed March 6, 1905, and was again overruled and an appeal prayed by appellee; and claiming that the questions of amendment and whether appellee had a good defense to the suit at law were res judicata; and praying the advantage of demurrer on the grounds that appellee had an adequate remedy at law, and the lack of equity on the face of the bill.
After the denial of the motion to amend the record made February 28, 1905, and renewed and again denied March 6, 1905, and on March 29, 1905, the original bill was filed in this case. May 8, 1905, Judge Mack of said Circuit Court granted an injunction upon said bill restraining appellant “from collecting or attempting to collect” said judgment and “from enforcing the execution under said judgment.”
June 5, 1905, Judge Tuley entered an order upon appellee to file a new bond in the sum of $4,100, which order was complied with on the following day.
June 19, 1905, a motion by appellant to dissolve the injunction then pending was denied by Judge Tuley.
July 1, 1905, by leaye of court appellee filed a supplemental bill, and thereupon Judge Tuley enjoined appellant from suing upon the $3,000 appeal bond and from suing James B. Hobbs, the surety in said bond, on account of the matters involved in this suit.
July 25, 1905, appellant appeared before Judge Windes of said Circuit Court, and moved to dissolve said injunction, relying upon the original and supplemental bill, the answer of appellant thereto, and the affidavits of Thomas H. Cannon, John B. Heinemann and Wm. J. McKenna. After argument for each of the parties thereto, Judge Windes refused to hear the motion.
July 26, 1905, the Clerk of said Circuit Court approved an appeal bond from the order of July 1, 1905, which in terms extended the injunction to restrain suit against the bondsman, James B. Hobbs.
The sole question before us is as to the propriety of the order of July 1, 1905, extending the injunction so as to prevent suit upon the $3,000 appeal bond.
We are of the opinion that the injunction as originally entered covered and included the surety. Where one is enjoined from “collecting or attempting to collect” a judgment, and also from “enforcing the execution under said judgment,” it is a violation of the spirit and intent of that order to bring suit against the surety upon a bond given in an effort to appeal from that judgment.
No appeal was prayed from the order entered May 8r 1905, nor from the order of June 19, 1905, denying the motion to dissolve that injunction. If we should set aside the order of July 1, 1905, appellant would still be enjoined and Hobbs would still be protected by the in junctional order of an earlier date. Why should we do a useless thing ?
As the original bill is not before us, we refrain from any comment upon it.
The decree of the Circuit Court is affirmed.-
Afjirmed-
