{ "id": 5169179, "name": "Gregory H. Hovnanian v. Nicholas Bedessern and Edward A. Higginbotham", "name_abbreviation": "Hovnanian v. Bedessern", "decision_date": "1896-03-31", "docket_number": "", "first_page": "353", "last_page": "357", "citations": [ { "type": "official", "cite": "63 Ill. App. 353" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "59 Ill. App. 407", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5149882 ], "opinion_index": -1, "case_paths": [ "/ill-app/59/0407-01" ] }, { "cite": "43 Ill. App. 451", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5056980 ], "opinion_index": -1, "case_paths": [ "/ill-app/43/0451-01" ] }, { "cite": "60 Ill. App. 475", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5157151 ], "opinion_index": -1, "case_paths": [ "/ill-app/60/0475-01" ] }, { "cite": "148 Ill. 382", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "45 Ill. App. 211", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5077347 ], "opinion_index": -1, "case_paths": [ "/ill-app/45/0211-01" ] }, { "cite": "98 Ill. 519", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2836517 ], "opinion_index": -1, "case_paths": [ "/ill/98/0519-01" ] }, { "cite": "46 Ill. App. 322", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5147697 ], "opinion_index": -1, "case_paths": [ "/ill-app/46/0322-01" ] }, { "cite": "79 Ill. 331", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2688784 ], "opinion_index": -1, "case_paths": [ "/ill/79/0331-01" ] }, { "cite": "25 Ill. 232", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "6 Ill. App. 429", "category": "reporters:state", "reporter": "Ill. App.", "opinion_index": -1 }, { "cite": "39 Ill. App. 248", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5015994 ], "opinion_index": -1, "case_paths": [ "/ill-app/39/0248-01" ] }, { "cite": "2 Scam. 58", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2474839 ], "opinion_index": -1, "case_paths": [ "/ill/3/0058-01" ] }, { "cite": "47 Ill. App. 166", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2440386 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ill-app/47/0166-01" ] }, { "cite": "59 Ill. App. 581", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5152862 ], "opinion_index": -1, "case_paths": [ "/ill-app/59/0581-01" ] }, { "cite": "135 Ill. 371", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2986103 ], "opinion_index": -1, "case_paths": [ "/ill/135/0371-01" ] }, { "cite": "31 Ill. App. 658", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 861699 ], "opinion_index": -1, "case_paths": [ "/ill-app/31/0658-01" ] }, { "cite": "113 Ill. 39", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2866066 ], "opinion_index": 0, "case_paths": [ "/ill/113/0039-01" ] }, { "cite": "29 Ill. 201", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2453351 ], "opinion_index": 0, "case_paths": [ "/ill/29/0201-01" ] }, { "cite": "9 Paige 332", "category": "reporters:state", "reporter": "Paige Ch.", "case_ids": [ 1893875 ], "opinion_index": 0, "case_paths": [ "/paige-ch/9/0332-01" ] }, { "cite": "155 Ill. 335", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 839715 ], "opinion_index": 0, "case_paths": [ "/ill/155/0335-01" ] }, { "cite": "51 Ill. App. 62", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5111450 ], "opinion_index": 0, "case_paths": [ "/ill-app/51/0062-01" ] }, { "cite": "58 Ill. App. 233", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5080738 ], "opinion_index": 0, "case_paths": [ "/ill-app/58/0233-01" ] }, { "cite": "59 Ill. App. 581", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5152862 ], "opinion_index": 0, "case_paths": [ "/ill-app/59/0581-01" ] }, { "cite": "31 Ill. App. 658", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 861699 ], "opinion_index": 0, "case_paths": [ "/ill-app/31/0658-01" ] } ], "analysis": { "cardinality": 482, "char_count": 8404, "ocr_confidence": 0.522, "pagerank": { "raw": 3.9230851144947914e-07, "percentile": 0.9027008910558106 }, "sha256": "6ad0514637b9075ace36b0726cc34a00270086b818214e615a4b81d3b7235005", "simhash": "1:2057622034e1b479", "word_count": 1484 }, "last_updated": "2023-07-14T18:54:49.987215+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Gregory H. Hovnanian v. Nicholas Bedessern and Edward A. Higginbotham." ], "opinions": [ { "text": "Mr. Presiding Justice Gary\ndelivered the opinion oe the Court.\nThe case presented by the bill of the appellant is that June 26, 1895, the appellee, Bedesern, demised to the appellant apartments in a large building for use as a dwelling and office as a physician and surgeon, with an undertaking by the landlord in the lease preventing a saloon being placed in the building. This term is to end May 1, 1896. October 30, 1895, this bill was .filed to enjoin a breach of that undertaking.\nSuch a relief is analogous to a decree for a specific performance. High on Inj., Sec. 1134.\nThe only purpose of an interlocutory injunction is to protect the complainant until the merits can be determined. If he can have no relief at the hearing, he can have no interlocutory injunction. High on Inj., Sec. 5.\nWe have held that a landlord might have an injunction to prevent the violation by his tenant of such a restriction upon the use of demised premises. Bryden v. Korthrup, 58 Ill. App. 233.\nSo has the Fourth District. Star Brewery Co. v. Primas, 59 Ill App. 581.\nAnd the principle applies in favor of the tenant as to other parts of the same building, though not included in the demise. Postal Tel. Cable Co. v. Western Union Tel. Co., 51 Ill. App. 62; 155 Ill. 335.\nAn interlocutory injunction granted without notice upon the filing of the bill was dissolved, as well it might be, both because granted without notice, with no showing that cause for so doing existed, (Sec. 3, Ch. 69, Injunctions,) and because the verification of the bill was a nullity.\nThe complainant swears that he \u201c knows the facts therein stated, and that all and each of said facts are true.\u201d Facts must be true, but which allegations of the bill are of real facts, and which are of fiction ?\nThe meaning of the English language can not be changed by the one isolated decision in Whelpley v. Van Epps, 9 Paige 332. But whether that injunction was properly dissolved is not a question for decision here, as no appeal lies from an order dissolving an injunction. Taylor v. Kirby, 31 Ill. App. 658, has been often followed in this court. So all that is here said about the granting of the interlocutory injunction is but advisory.\nOn dissolving the injunction the court dismissed the bill for want of equity.\nWhether that was rightly done depends upon the showing made by the bill itself, not upon the verification of it, nor the answer to it.\nIf the allegations of the bill made a case, the appellant had the right to try to prove them.\nAnd we have not been referred to any valid objection to the frame of the bill. The right or wrong decision of the court in dissolving the interlocutory injunction had no influence upon the character of the relief which might be given to the appellant by a final decree.\nIf there was some lack of precision, or of sufficient explanation, in some allegations of the bill, it should not be dismissed for want of equity on such ground, but they being pointed out, leave to amend should be given, if asked; if not asked, then the dismissal might follow. It is quite apparent, however, that the bill was not dismissed because of any supposed insufficient statement of the case of the appellant, but because it was supposed he had no case to state. The lease, made an exhibit to the bill, purports to have been signed by agents in their own name of business, though in the body it purports to be a demise from Bedessern. He, by answer, denied the authority of the agents to put the restrictive clause in the lease. The irregularity in the mode of execution was no obstacle to equitable relief, if the agents had authority, and whether they had or not was a question to be tried.\nThe greatest difficulty we have with the case, is that the term had but six months to run when the bill was filed. There is some discretion in the exercise of equity jurisdiction, even on appeal. Curtis v. Brown, 29 Ill. 201. More in the first instance. C., B. & Q. R. R. v. Reno, 113 Ill. 39.\nConsidering the usual time required, or at least consumed, to dispose of a chancery cause, should a bill be entertained in a case that in six months will have nothing in it ? We hesitate, but hold that the bill should not have been dismissed because of the short term of the lease.\nThe decree is reversed and the cause remanded, notwithstanding that the six months have wasted, to six weeks. Reversed and remanded.", "type": "majority", "author": "Mr. Presiding Justice Gary" } ], "attorneys": [ "Chester Firebaugh, attorney for appellant.", "H. T. & L. Helm, attorneys for appellee Nicholas Bedessern." ], "corrections": "", "head_matter": "Gregory H. Hovnanian v. Nicholas Bedessern and Edward A. Higginbotham.\n1. Injunction\u2014Landlord and Tenant.\u2014A landlord is entitled to an injunction to prevent the violation by the tenant of a restriction upon the use of the demised premises, although the term for which the premises were demised has nearly expired.\n2. Same\u2014Purpose of an Interloautory Injunction.\u2014The only purpose of an interlocutory injunction is to protect the complainant until the merits of the case can be determined. If he can have no relief at the hearing he can have no interlocutory injunction.\n3. Same\u2014Issued Without Notice.\u2014An injunction issued without notice and with no showing that cause for so doing existed, under section 3, chapter 69, R. S., entitled \u201c Injunctions,\u201d is properly dissolved.\n4. Equity Practice\u2014Insufficient Verification of a Bill.\u2014Where a complainant swears that heknows the facts stated in his bill, and that all and each of said facts are true,\u201d the verification is a nullity.\n5. Appeals\u2014From an Order Dissolving an Injunction.\u2014An appeal does not lie from an order dissolving an injunction. Taylor v. Kirby, 31 Ill. App. 658.\nBill for an Injunction.\u2014Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the March term, 1896.\nReversed and remanded.\nOpinion filed March 31, 1896.\nChester Firebaugh, attorney for appellant.\nIf the allegations of the bill were sufficient the complainant was entitled to injunction, even though a violation of same would occasion him no substantial injury. Consolidated Coal Company v. Schmisseur, 135 Ill. 371; Kirkpatrick v. Peshine, 9 C. E. Green 206; Stewart v. Winters, 4 Standf. Ch. 587; Star Brewery Company v. Primas, 59 Ill. App. 581.\nIn dismissing bill the court must have decided something not submitted to it; if it was proper to dissolve the injunction, the bill should have been set down for trial in the regular way, not dismissed. Clabby v. Sheldon, 47 Ill. App. 166; Beam v. Denham, 2 Scam. 58; Martin v. Jamison, 39 Ill. App. 248; Gillett v. Booth, 6 Ill. App. 429.\nAn order dissolving an injunction is appealable where it is a final order. Clabby v. Sheldon, 47 Ill. App. 166. A decree dissolving an injunction may be either interlocutory or final. It will be final where no other relief is sought than the injunction, and where it is dissolved for want of equity on the face of the bill. It is therefore an appealable order. Titus v. Mabee, 25 Ill. 232; Prout v. Maghee, 79 Ill. 331; Cors v. Tomkins, 46 Ill. App. 322.\nIt is the duty of the party who wishes to sustain a decree to preserve the facts or have proper findings made in the decree; the appellee not having done this, there is nothing to support the decree or judgment and it must fall. Marvin v. Collins, 98 Ill. 519; Alexander v. Alexander, 45 Ill. App. 211; Chicago Public Stock Exchange v. McGlaughery, 148 Ill. 382.\nH. T. & L. Helm, attorneys for appellee Nicholas Bedessern.\nThe injunction was granted without notice of the time and place of the application having been given to the defendants, and without showing, from the bill or affidavit in support thereof, that the right of the complainant would be unduly prejudiced if the injunction was not issued without such notice. This was in contravention of the statute. Revised Statutes, Chap. 69, Sec. 3.\nAn injunction granted without notice is in violation of the statute. A mere statement of a conclusion in an affidavit is not sufficient to make it appear that the complainant will be unduly prejudiced if the injunction is not issued Avithout notice. It is the court, judge, or master to whom that conclusion is to appear, and the facts from which it is to be drawn should be stated to the court, judge or master. King v. Partridge, 60 Ill. App. 475; Carpenter v. White, 43 Ill. App. 451; Brough v. Schanzenbach, 59 Ill. App. 407.\nTo sustain an injunction, granted Avithout notice, all the essential and material allegations must be positively proved and stated. 1 High on Injunctions, 35." }, "file_name": "0353-01", "first_page_order": 349, "last_page_order": 353 }