{ "id": 5128705, "name": "The Lionel Corporation, Appellant, v. Central Appliance and Furniture Company, Inc., Appellee", "name_abbreviation": "Lionel Corp. v. Central Appliance & Furniture Co.", "decision_date": "1954-11-24", "docket_number": "Gen. No. 46,345", "first_page": "460", "last_page": "464", "citations": [ { "type": "official", "cite": "3 Ill. App. 2d 460" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "318 Ill. App. 368", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3399687 ], "opinion_index": 0, "case_paths": [ "/ill-app/318/0368-01" ] }, { "cite": "383 Ill. 323", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2485555 ], "opinion_index": 0, "case_paths": [ "/ill/383/0323-01" ] }, { "cite": "327 Ill. App. 491", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3418114 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app/327/0491-01" ] }, { "cite": "24 F. Supp. 471", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4164110 ], "opinion_index": 0, "case_paths": [ "/f-supp/24/0471-01" ] }, { "cite": "364 Ill. 112", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2587024 ], "weight": 2, "pin_cites": [ { "page": "115-16" } ], "opinion_index": 0, "case_paths": [ "/ill/364/0112-01" ] }, { "cite": "383 Ill. 569", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2487545 ], "pin_cites": [ { "page": "573-9" } ], "opinion_index": 0, "case_paths": [ "/ill/383/0569-01" ] }, { "cite": "2 Ill.2d 111", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 12122624 ], "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/2/0111-01" ] }, { "cite": "401 Ill. 605", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5307314 ], "weight": 2, "pin_cites": [ { "page": "610" }, { "page": "608-13" } ], "opinion_index": 0, "case_paths": [ "/ill/401/0605-01" ] } ], "analysis": { "cardinality": 355, "char_count": 5732, "ocr_confidence": 0.54, "pagerank": { "raw": 1.606997171242164e-07, "percentile": 0.6848644457649847 }, "sha256": "87da441f8f564f3f6b69002399debf373dce3ba30a0a0fb56291fd4c3d9d196c", "simhash": "1:a4c0c06669464e6a", "word_count": 951 }, "last_updated": "2023-07-14T21:04:26.122675+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Lewb and Feinberg, JJ., concur." ], "parties": [ "The Lionel Corporation, Appellant, v. Central Appliance and Furniture Company, Inc., Appellee." ], "opinions": [ { "text": "Mr. Presiding Justice Kiley\ndelivered the opinion of the court.\nThis is an action under the Illinois Fair Trade Act (Ill. Rev. Stats. 1953, ch. 121\u00bd, \u00a7\u00a7 188-191 [Jones Ill. Stats. Ann. 134.08-134.11]) seeking an injunction and damages. Injunctive relief was granted plaintiff in a decree of February 23, 1950. On December 3, 1953 the decree was vacated. Plaintiff has appealed.\nThe first order, appearing in the record, following the entry of the decree of February 23, 1950 is an order entered October 23, 1953, reassigning the cause for further proceedings \u201cin conformity with the decree.\u201d This was on defendant\u2019s motion and apparently without notice to the plaintiff. On November 5, 1953 defendant upon notice to plaintiff was given leave to file the petition to vacate. The chancellor ordered the petition filed and set a hearing on the petition for November 9th. November 6th plaintiff petitioned for change of venue. The change of venue was denied after the chancellor \u201cheard arguments\u201d and was \u201cadvised in the premises.\u201d Thereafter the proceedings led to the entry of the order of December 3, 1953 from which this appeal is taken.\nThe defendant urges the novel contention that because the decree of February 23,1950 reserved jurisdiction the order for the injunction was interlocutory and the petition to vacate a virtual motion to dissolve and the instant decree an order of dissolution of an interlocutory order from which there is no appeal. That decree is expressly \u201cpermanent\u201d and the record and the terms of the decree in our opinion establish the injunction as permanent. That decree despite the reservation \u201cfor enforcing, modifying or altering\u201d ordered the issuance of a permanent injunction and was not an interlocutory order. (Roddy v. Armitage-Hamlin Corp., 401 Ill. 605, 610.) It seems clear a permanent injunction was contemplated under the conditions and circumstances existing when the injunction issued.\nFurthermore the decree of December 3, 1953 did not merely modify or alter a previous decree but vacated it. Also an order dismissing the complaint would not have been proper because the complaint sought damages as well as the injunction. This fact, however, does not render the order unappealable since the decree vacating the injunction order definitively disposed of the prayer for injunction and is accordingly appealable. Ylonen v. Ylonen, 2 Ill.2d 111, 116; Roddy v. Armitage-Hamlin Corp., 401 Ill. 605, 608-13; Brauer Machine & Supply Co. v. Parkhill Truck Co., 383 Ill. 569, 573-9; Rettig v. Zander, 364 Ill. 112, 115-16.\nWe have read Rettig v. Zander, 364 Ill. 112, and the other eases cited by the defendant and find no rule inconsistent with our conclusion on this point. Defendant refers us to Murphy v. North American Co., 24 F. Supp. 471, for an injunctional decree which reserved jurisdiction to modify or alter a decree in the future. The court there characterized the decree as a \u201cfinal decree.\u201d\nPlaintiff contends the chancellor erred in denying the change of venue. The only relevant reason assigned by the chancellor for denying the change was that it was filed after \u201cthe court had entered an adverse ruling to plaintiff in permitting the filing\u201d of defendant\u2019s petition to vacate. The order of denial entered November 6, 1953 recites that \u201cthe objection of plaintiff filing of defendant\u2019s motion and petition is denied.\u201d Defendant argues that the record therefore shows the petition for the change of venue was not timely and the chancellor did not err in his ruling although the petition conformed to the formal requirements of the Venue Act. (Ill. Rev. Stats. 1953, ch. 146 [Jones Ill. Stats. Ann. 107.316 et seq.].)\nWe think the chancellor erred in denying the change of venue. The adverse ruling referred to by the chancellor and the defendant was as to whether the petition to vacate should be filed. The ruling was not upon the sufficiency of the petition. Until the petition was filed there was no issue or proceeding before the chancellor which could be changed.\nIn Talbot v. Stanton, 327 Ill. App. 491, a motion for change of venue was held timely though made while movant\u2019s motion to dismiss was pending. In the instant case plaintiff\u2019s motion to dismiss was not made until after the change of venue was denied. In Commissioners of Drainage Dist. No. 1 v. Goembel, 383 Ill. 323, the court at page 329 said: \u201cthe application must he made before the hearing starts.\u201d The order in the instant case denying the change set a date for a hearing thereof in advance of the date of the hearing of the petition to vacate. In Juckins v. Professional Service Corp., 318 Ill. App. 368 cited by defendant, the case was at issue and was held for trial at 10 a. m.; when it was called for trial at 11:30 defendant asked for a continuance which was denied: defendant then made the motion for change of venue; and the motion showed defendant knew of the judge\u2019s \u201cprejudice\u201d when the motion for a continuance was made.\nBecause we have decided the chancellor erred in denying the change of venue it follows that all proceedings subsequent to the order of November 6, 1953 are void. Talbot v. Stanton, 327 Ill. App. 491.\nThe decree of December 3, 1953 is reversed and the cause is remanded for further proceedings.\nReversed and remanded.\nLewb and Feinberg, JJ., concur.", "type": "majority", "author": "Mr. Presiding Justice Kiley" } ], "attorneys": [ "Weissenbach, Hartman, Craig & Okin, of CMcago, for appellant; Harry Okin, and Cecil E. Magid, both of Chicago, of connsel.", "Wisch, Crane & Rosell, of CMcago, for appellee; Myron E. Wisch, and Leon A. Rosell, both of CMcago, of counsel." ], "corrections": "", "head_matter": "The Lionel Corporation, Appellant, v. Central Appliance and Furniture Company, Inc., Appellee.\nGen. No. 46,345.\nOpinion filed November 24, 1954.\nReleased for publication December 16, 1954.\nWeissenbach, Hartman, Craig & Okin, of CMcago, for appellant; Harry Okin, and Cecil E. Magid, both of Chicago, of connsel.\nWisch, Crane & Rosell, of CMcago, for appellee; Myron E. Wisch, and Leon A. Rosell, both of CMcago, of counsel." }, "file_name": "0460-01", "first_page_order": 498, "last_page_order": 502 }