{ "id": 5282420, "name": "J. M. Phelan, et al., Partners d/b/a A. T. Kearney & Company, a Partnership, Plaintiffs-Appellees, v. George L. Wright, Defendant-Appellant", "name_abbreviation": "Phelan v. Wright", "decision_date": "1964-12-14", "docket_number": "Gen. No. 49,858", "first_page": "178", "last_page": "183", "citations": [ { "type": "official", "cite": "54 Ill. App. 2d 178" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "173 NE2d 582", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "30 Ill App2d 77", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5789263 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ill-app-2d/30/0077-01" ] }, { "cite": "84 Ill App 413", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5259573 ], "year": 1899, "opinion_index": 0, "case_paths": [ "/ill-app/84/0413-01" ] }, { "cite": "100 Ill App 108", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2599536 ], "year": 1902, "opinion_index": 0, "case_paths": [ "/ill-app/100/0108-01" ] }, { "cite": "68 NE 414", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1903, "opinion_index": 0 }, { "cite": "204 Ill 82", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3276632 ], "year": 1903, "opinion_index": 0, "case_paths": [ "/ill/204/0082-01" ] }, { "cite": "273 Ill App 532", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5625123 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/ill-app/273/0532-01" ] }, { "cite": "77 NE2d 57", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "333 Ill App 223", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5034860, 5030359 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/ill-app/333/0223-01", "/ill-app/333/0223-02" ] }, { "cite": "112 NE2d 495", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "350 Ill App 190", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5105642 ], "year": 1953, "pin_cites": [ { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/ill-app/350/0190-01" ] }, { "cite": "161 NE2d 714", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "23 Ill App2d 154", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5205002 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/ill-app-2d/23/0154-01" ] } ], "analysis": { "cardinality": 483, "char_count": 8286, "ocr_confidence": 0.54, "pagerank": { "raw": 4.012586700347389e-07, "percentile": 0.9062458853778734 }, "sha256": "9d3ee160fb7b1c5a421e4796b19db6fc4e9c8a51fe1ea68a46f3a6df8d15765f", "simhash": "1:7cfc526e503bddd8", "word_count": 1353 }, "last_updated": "2023-07-14T21:56:22.509094+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BURMAN and KLUCZYNSKI, JJ., concur." ], "parties": [ "J. M. Phelan, et al., Partners d/b/a A. T. Kearney & Company, a Partnership, Plaintiffs-Appellees, v. George L. Wright, Defendant-Appellant." ], "opinions": [ { "text": "MB. PBESIDINGr JUSTICE MUBPHY\ndelivered the opinion of the court.\nThis is an interlocutory appeal by defendant from a temporary injunction order, which restrains defendant from engaging in management engineering or any service competitive with plaintiffs within 150 miles of Chicago. Defendant contends error, because \u201cthe injunction was issued without notice, without a hearing and upon a record which contained merely an unverified complaint and no other sworn pleadings, affidavits or other competent evidence.\u201d\nOn April 2, 1961, plaintiffs filed their unverified complaint for an injunction, alleging that defendant was in violation since December, 1963, of noncompetitive provisions of a partnership agreement, to which defendant was a party. Paragraph 8 of the complaint alleged \u201cdefendant\u2019s past violations and continuing violations of the aforesaid agreement are causing and will continue to cause plaintiffs irreparable damage, in that defendant, through his knowledge of the clients, business, and methods of the partnership A. T. Kearney & Company, is in a position to divert business of A. T. Kearney & Company to defendant\u2019s present firm, all in violation of tbe aforesaid agreement. Plaintiffs bave no adequate remedy at law, and damages alone would be inadequate to remedy tbe irreparable injury being done to plaintiffs.\u201d\nOn April 20, 1964, defendant was served with summons, and on June 9, 1964, be filed bis motion to dismiss tbe complaint. Tbe motion to dismiss was beard on July 13, 1964, after several continuances, granted on defendant\u2019s motion. After bearing arguments of counsel on tbe motion to dismiss, tbe court entered an order on July 14, 1964, wbicb denied tbe motion to dismiss and ordered that tbe temporary injunction issue. Defendant appeals from tbe injunction order.\nDefendant contends that be came prepared for and did argue a motion to dismiss, and be did not argue tbe matter of a temporary injunction; that be was not given an opportunity nor was be prepared to argue tbe question of a temporary injunction, and, in fact, \u201cthere was no bearing on tbe matter of issuing tbe temporary injunction,\u201d and \u201cit was also issued without any evidence to support it. Tbe complaint is unverified. At tbe time tbe injunction was ordered to issue there were no verified pleadings in tbe record, no affidavits bad been filed, nor was an answer due or on file.\u201d\nDefendant\u2019s points are: (1) Tbe validity of a temporary injunction must be determined upon tbe record as it was at tbe time tbe order was entered; (2) a temporary injunction shall not issue without notice, except under extraordinary circumstances; (3) it was error to order tbe temporary injunction to issue without allowing tbe defendant to be beard; and (4) a temporary injunction issued only upon an unverified complaint, and no other sufficient evidence, must be dissolved.\nPlaintiffs concede that \u201ca temporary injunction must stand or fall on the record which existed at the time of its entry\u201d; that the complaint was unverified; and that the hearing was held on the merits of defendant\u2019s motion to dismiss the complaint. Plaintiffs assert that they \u201cdid not seek and did not obtain an ex parte order. Defendant\u2019s counsel was present in court and made a full argument directed against the complaint. He was present in court when the chancellor announced he was upholding the complaint and would enter a temporary injunction. The complaint remained nndenied at the time of the entry of the order although defendant had had over two months to respond. Moreover, defendant\u2019s motion admitted the well pleaded allegations of the complaint,\u201d and for the purposes of the hearing on July 13, 1964, \u201cverification of the complaint was unnecessary and immaterial.\u201d\nOf defendant\u2019s contentions, we believe lack of verification of the complaint is determinative. Although it is well settled that the granting of a temporary injunction rests largely in the discretion of the trial court, and it is not controlled by technical legal rules (Weingart v. Weingart, 23 Ill App2d 154, 161 NE2d 714 (1959)), our courts of review have repeatedly emphasized the need for great caution in granting orders for injunction. Where a preliminary injunction is based upon the face of the complaint, \u201cthe facts relied upon to establish such right must be alleged positively and with certainty and precision. . . . Allegations verified on information and belief are insufficient to support an injunction order.\u201d (Hope v. Hope, 350 Ill App 190, 194, 112 NE2d 495 (1953).) \u201cIt is indispensable to the right to temporary injunction that all material facts alleged be properly verified by affidavit. Where a preliminary injunction is applied for on the face of the complaint, the complaint must be verified.\u201d (21 ILP \u00a7 122, p 617.) See, also, 43 CJS, Injunctions, \u00a7 187, p 879; Haxton v. Haxton, 333 Ill App 223, 77 NE2d 57 (1948).\nAs to verification being a basic requirement, plaintiffs argue \u201cthere is no statutory requirement that a complaint be verified in order to justify a temporary injunction. Section 3 of the Injunction Act (Ill Rev Stats, c 69, \u00a7 3) makes no such requirement with the possible exception of ex parte injunctions. The cases relied upon by plaintiff involve either ex parte injunctions, where defendant had no opportunity to make a defense or cases in which defendant had an answer on file. None of those factors are present here.\u201d\nCases cited by plaintiffs to show that verification of the instant complaint \u201cwas unnecessary and immaterial\u201d to support the issuance of the instant temporary injunction, because \u201cdefendant admitted the verity of his allegations\u201d by his motion to dismiss the complaint, are Decker v. West, 273 Ill App 532 (1934); Fowler v. Fowler, 204 Ill 82, 68 NE 414 (1903); Sharples v. Baker, 100 Ill App 108 (1902), including Keach v. Hamilton, 84 Ill App 413 (1899), where it is said (p 416):\n\u201cBy demurring to the bill [defendant] admitted the facts, and it thereby was not important whether any affidavit was attached to the bill or not. Where is the necessity or use of verification of the facts by oath or affirmation, when such facts have been admitted by the adverse party upon the records of the court?\u201d\nWe are not persuaded that when the court denied defendant\u2019s motion to dismiss, absent any other simultaneous action or pleading by defendant, that defendant\u2019s denied motion to dismiss could be considered as admitting the \u201cverity\u201d of the allegations of the complaint, including the averment that \u201cby or through defendant\u2019s knowledge of the clients, business and methods of plaintiffs\u2019 business, he was and continues to be in a position to divert business from plaintiffs.\u201d As said in Villareal v. Trevino, 30 Ill App2d 77, 173 NE2d 582 (1961), at p 83:\n\u201cA motion to strike a pleading for want of sufficiency admits the facts averred for the purpose of the motion and no more. Plaintiffs would have us treat it as if it were a judicial admission, binding throughout the case. All such a motion does is to assert hypothetically that if all the facts set forth in the complaint are accepted as true, they still do not state a cause of action.\u201d\nWe hold the denied motion to dismiss did not dispose of the fundamental requirement of verification (or amount to a waiver). Therefore, examining the instant record in the light of the foregoing, we conclude that justice and equity require us to find it was an abuse of discretion to issue a temporary injunction on an unverified complaint, which was not supported by a verified petition or affidavit. Considering the view we take of this case, it is unnecessary to consider the other points raised.\nFor the reasons given, that part of the order granting the injunction is reversed.\nReversed in part.\nBURMAN and KLUCZYNSKI, JJ., concur.", "type": "majority", "author": "MB. PBESIDINGr JUSTICE MUBPHY" } ], "attorneys": [ "Norville, Walsh & Case, of Chicago (Bobert 0. Case, Bichard J. Walsh, and Bobert N. Caffarelli, of counsel), for appellant.", "Chadwell, Keck, Kayser, Buggies & McLaren, of Chicago (Budy L. Buggies, James E. Hastings, Bichard E. Wiley and David L. Aufderstrasse, of counsel), for appellees." ], "corrections": "", "head_matter": "J. M. Phelan, et al., Partners d/b/a A. T. Kearney & Company, a Partnership, Plaintiffs-Appellees, v. George L. Wright, Defendant-Appellant.\nGen. No. 49,858.\nFirst District, First Division.\nDecember 14, 1964.\nNorville, Walsh & Case, of Chicago (Bobert 0. Case, Bichard J. Walsh, and Bobert N. Caffarelli, of counsel), for appellant.\nChadwell, Keck, Kayser, Buggies & McLaren, of Chicago (Budy L. Buggies, James E. Hastings, Bichard E. Wiley and David L. Aufderstrasse, of counsel), for appellees." }, "file_name": "0178-01", "first_page_order": 188, "last_page_order": 193 }