{ "id": 2484027, "name": "William V. Smith et al. v. Charles A. Nelson", "name_abbreviation": "Smith v. Nelson", "decision_date": "1907-01-15", "docket_number": "Gen. No. 13,133", "first_page": "145", "last_page": "149", "citations": [ { "type": "official", "cite": "131 Ill. App. 145" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "72 Ill. App. 239", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5241034 ], "opinion_index": 0, "case_paths": [ "/ill-app/72/0239-01" ] }, { "cite": "127 Ill. App. 619", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2515121 ], "opinion_index": 0, "case_paths": [ "/ill-app/127/0619-01" ] }, { "cite": "64 Ill. App. 373", "category": "reporters:state", "reporter": "Ill. App.", "opinion_index": 0 }, { "cite": "61 Ill. App. 354", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5165348 ], "opinion_index": 0, "case_paths": [ "/ill-app/61/0354-01" ] }, { "cite": "64 Ill. App. 367", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5176763 ], "opinion_index": 0, "case_paths": [ "/ill-app/64/0367-01" ] }, { "cite": "69 Ill. App. 137", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5201809 ], "opinion_index": 0, "case_paths": [ "/ill-app/69/0137-01" ] } ], "analysis": { "cardinality": 380, "char_count": 7399, "ocr_confidence": 0.487, "pagerank": { "raw": 8.138363859351185e-08, "percentile": 0.4710954190765562 }, "sha256": "681b460d6aeb314ba79cdee6ea586da160a4cf72a45fad165bda89c3d81b458c", "simhash": "1:5eebd79b3c422424", "word_count": 1298 }, "last_updated": "2023-07-14T18:03:26.003810+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "William V. Smith et al. v. Charles A. Nelson." ], "opinions": [ { "text": "Mr. Presiding Justice Freeman\ndelivered the opinion of the court.\nIt is urged in behalf of appellants that the record fails to disclose any order of injunction entered of record by the Circuit Court, and that to be effective such order must so appear. The record recites that \u201cthere was indorsed upon said bill of complaint the following order by the Honorable Julian W. Mack, one of the judges of this court, which said order so indorsed upon said bill of complaint is in words and figures following, to-wit, \u2018let inj. issue as prayed without bond. \u2019 \u201d The writ of injunction thereupon issued, but without authority of any other or further order of record. In Schlesinger v. Allen, 69 Ill. App. 137, a like question was considered. There it did not appear \u201cthat in fact .any writ of injunction issued.\u201d In the case at bar the record contains such writ. In neither case was there any formal order of court directing the issue of the injunction. In the Schlesinger case it was said that \u201can order on the bill\u2014which is part of the record\u2014must be treated prima facie as the act of the court, notwithstanding the fact that the clerk has not written up the formal order upon the record.\u201d Such an order so indorsed shows doubtless that the judge directed the issue of a writ of injunction. As said in Board of Education v. Frank, 64 Ill. App. 367-375 (opinion of Mr. Justice Waterman), \u201ca court of record speaks only by its record; that is, to determine what it has done recourse must be had to its record.\u201d The order in question so indorsed by the judge upon the bill of complaint may properly be deemed an order of record, for it is as much a part of the record as the bill itself, but it does not thereby necessarily become an order of the court.\nIt is said in behalf of appellee that \u201cif the record fails to disclose any order of injunction entered of record in the Circuit Court,\u201d the appeal should be dismissed. The statute provides that \u201cwhenever an interlocutory order or decree is entered in any suit pending in any court in this State granting an injunction * * * an appeal may be taken from such interlocutory order or decree to the Appellate Court.\u201d (R. S., chap. 23, sec. 52.) If the order indorsed by the chancellor upon the bill can be considered as \u201centered\u201d within the meaning of the statute, then it is appealable. If not so c \u2018 entered,5 \u2019 the appeal should be dismissed. Orders similarly indorsed have been treated heretofore in this court as appealable. Mexican Asphalt Co. v. Mexican Asphalt Paving Co., 61 Ill. App. 354-356; Board of Education v. Frank, 64 Ill. App. 373-374; Williams v. Harper, 127 Ill. App. 619. On the other hand, in Merkel v. William Schmidt Baking Co., 72 Ill. App. 239-241, where \u201cthe record contained neither order nor writ of injunction,\u201d there was no certificate of the clerk that the transcript filed was complete, and it could not be determined therefrom whether there ever had been an injunction order. It was said that inasmuch as no appeal lies from an order granting an injunction except by virtue of the statute, \u201cthe record should show some order of the court as the basis for an appeal,\u201d and in the absence of an order for an injunction in the record, the appeal was dismissed of the court\u2019s own motion . In the case at bar, we are of opinion that the record does not show an order \u201centered\u201d within the meaning of the language of the statute providing for appeals from interlocutory orders granting injunctions. It was, we think, the intention of the legislature to provide for appeals from any such interlocutory orders, however made, whenever they shall be \u201centered in any suit pending\u201d and appear of record as in this case, even though not formally entered by the clerk as orders of court. To construe the statute otherwise would, we think, do violence to its manifest intent and would permit a complainant to have the benefit of an injunction which, though unlawfully issued, might not be safely disregarded by a. defendant taking the chances of a proceeding for contempt.' A mere dismissal of an appeal on the ground that the writ was void ab initio would be an unsatisfactory conclusion as the result of the expense to which a defendant had been put by the erroneous order. In the Schlesinger case, supra, it affirmatively appeared that there was never any action by the court upon the application for an injunction, but the order was merely signed by the judge. It was held to be void, but appealable nevertheless. We are of opinion the interlocutory order entered by the judge in this case granting the injunction complained of was appealable in the same way and to the same extent as if it had been an order of the court duly entered of record.\nThe writ was not, however, lawfully issued. The statute provides that \u201cthe Circuit Courts in term time, and any judge thereof in vacation shall have power to grant wirts of injunction.\u201d It. S., chap. 69, sec.. 1. The record in the case before us shows that the writ of injunction was granted by the 'judge in term time. ' It could be lawfully granted at that time only by order of court, not by the judge as it might have been in vacation. It does not appear whether the order indorsed upon the bill by the judge was intended as an order of court to be regularly entered of record by the clerk or not. It probably was so intended. Bnt it never was so entered, and the writ complained of was neither a writ of injunction granted by the court in term time nor a writ granted by a judge in vacation. Its issue was, therefore, erroneous.\nThis conclusion makes it unnecessary to consider other - questions presented in the briefs. The interlocutory. order appealed from will be reversed.\nReversed.", "type": "majority", "author": "Mr. Presiding Justice Freeman" } ], "attorneys": [ "Charles R. Napier, for appellants.", "Joseph W. Latimer, for appellee." ], "corrections": "", "head_matter": "William V. Smith et al. v. Charles A. Nelson.\nGen. No. 13,133.\n1. Appeal\u2014what sufficient order to sustain, from granting of preliminary injunction. An appeal may be taken from the granting of a preliminary injunction where the issuance of the writ is predicated solely upon a memorandum order indorsed upon the bill.\n2. Injunction\u2014when issuance of, illegal. The issuance of a writ of injunction is irregular and improper where it is predicated solely upon a memorandum order indorsed upon the bill. A preliminary order entered of record is essential to a regular and valid issuance of the writ of injunction.\nBill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.\nHeard in the Branch Appellate Court at the March term, 1906.\nReversed.\nOpinion filed January 15, 1907.\nStatement by the Court. This is an appeal from an interlocutory order granting an injunction. The writ restrained appellants and others from prosecuting a suit brought before a justice of the peace in Cook county having his office in the town of Lyons. In that suit an employer of appellee was served with a subpoena duces tecum commanding -the production of the employer\u2019s books of account, pay roll and the like, before the justice. The bill sets forth that it was one of several suits alleged to have been .brought for the purpose of harassing the complainant and to cause him to be discharged from his employment, appellants having already, it is stated, caused appellee\u2019s discharge by a previous employer who had been annoyed in like manner. The injunction issued on the first day of the June term, 1906.\nCharles R. Napier, for appellants.\nJoseph W. Latimer, for appellee." }, "file_name": "0145-01", "first_page_order": 161, "last_page_order": 165 }