127 Ill. App. 619 | Ill. App. Ct. | 1906
delivered the opinion of the court.
It is evident from a reading of the bill in this cause that the injunction has been improvidently granted and ought to be dissolved. .
The bill is clearly obnoxious to a general demurrer and such a bill cannot be permitted to serve as the support for an injunctional order dealing with substantial legal rights.
The bill is multifarious in that it seeks to join and deal with interests as a whole which are not joint and which have no such relation to each other as would justify a court of equity in adjudicating upon them in one action. The contracts, the avowed subject-matter of the bill, are separate and distinct contracts and engagements -between the defendants and each individual complainant. There is no averment from which even a consort of action can be drawn or that one contract in any manner rests upon any one of the others, either for its primal or final execution. They are. not .even contemporaneous in point of time of execution. Ho one complainant, so far as appears from the averments of the bill, had any knowledge of the dealings of his co-complainants with defendants in the matter of making the contract for subscription or that such contract of subscription had been made, or that a subscription was procured from any one of the complainants in the faith of any existing subscription with any co-complainant. Each seems to have acted in the matter entirely independent of the other.
The injunction should not have been issued without notice.
It is the invariable practice in this state rarely to grant an injunction ex parte and without notice and never unless it clearly appears that irreparable injury will result from delay. Phelps v. Foster, 18 Ill. 309; Chicago City Ry. Co. v. Montgomery Ward Co., 76 Ill. App. 536. Before an injunction can be granted without notice, facts must be shown from which the court can see that irreparable injury will or is liable to result. Henderson v. Flanagan, 75 Ill. App. 283; Chicago City Ry. v. Gen. Electric Co., 74 Ill. App. 465.
The subscription contracts of complainants are in no sense negotiable paper, so that no third party by assignment could obtain any greater rights or hold complainants to any enlarged degree of responsibility after assignment than defendants could before. There is no averment that complainant Tichy was the owner of any personal property liable to execution upon final process issuing out of the court of a justice of the peace or that he had property which could be seized under any execution issued upon the judgment obtained by defendants against Tichy before Justice Martin. In these circumstances we are unable to discover how complainants’ rights could be injuriously affected by giving defendants notice of their application to the court for an injunctional order.
The in junctional order restrains defendants from issuing an execution on their judgment in Justice Martin’s court against Tichy. The injunction bond should have been conditioned for the payment of all moneys and costs due defendants in the judgment in compliance with section 8, chapter 69 R. S. The failure so to do is reversible error. This case falls within the rule announced in Stirlen v. Neustadt, 50 Ill. App. 378. The bond here as in Stirlen v. Neustadt, supra-, is conditioned only for the payment “of all such costs and damages as shall be awarded * * * in case said injunction is dissolved.” This is not in accord with the demand of the statute and is consequently insufficient.
The record fails to disclose any order of injunction entered of record in the Circuit Court. The clerk seems to have issued the writ of injunction in virtue of the following indorsement upon the bill:
“Let the writ of injunction issue as recommended upon Complainant William E. Harper giving bond in the sum of five hundred (§500) dollars.
C. M. W.,
J.”
The clerk certifies that the foregoing indorsement was made March 19,1906, by the Honorable Charles M. Walker, one of the judges of the Circuit Court. But for this certificate this court would have no right to take judicial cognizance that the letters “C. M. W., J.” was the judicial act of the chancellor ordering the injunction writ. It was, however, the duty of the clerk of the court, with knowledge of this action of the chancellor, to have made the intention of the chancellor effective by entering an order for injunction from that memorandum upon the records of the court. As it is, there is no record in the Circuit Court authorizing the issuing-of the writ. In this regard the action of the clerk is irregular. The orders of the court, to be effective, must appear upon the records of the court. Memorandums or minutes of the judge cannot take the place of the record or furnish the foundation for process in the nature of a writ of injunction. Hughs v. Washington, 65 Ill. 245.
Ho where does the bill disclose any damage suffered by or threatened complainants by reason of the publication of the history in question without their biography, neither does it appear that either of the complainants furnished defendants with any of their biographies with request to publish, or that defendants ever declined to publish a biography of either of complainants in the history of the Horthwestern University. It would seem that the maxim' damnum absque injuria applies with much force to the case stated in complainants’ bill. That the history of that meritorious institution of learning, the Northwestern University, would be less valuable or lack literary tone or interest to the alumni and graduates and the people who might wish to inform themselves about its history because of the lack of the biographies of these complainants is not even fairly inferable from a statement of the environing conditions, and no other complaint than the absence of these biographies is made against the publication from a typographical, literary or artistic standpoint, neither does the bill call in question or challenge the accuracy of the contents of the publication.
It is clear that the bill does not state facts which entitle complainants to relief from their several contracts of subscription in a court of equity. The bill is silent as to any artifice having been practiced by defendants or any one acting for them, upon any of the complainants to induce them to sign the subscription slip or write their names in the subscription book with their addresses, or that there was any reason why they were not able to read that which they signed or to understand the full effect and purport of their acts. Ho fraud in signing the slip and the book or imposition in this regard is charged in the' bill.
Crawford Adsit Co. v. Fordyce, 100 Ill. App. 362, is decisive of the questions here raised as to the multifariousness of the bill and the binding effect of the contracts of subscription. The Crawford case (supra), like this, is a subscription book case.
For the foregoing reason the interlocutory injunction appealed from is reversed.
Reversed.
