author: JUSTICE DOVE

text:
    Pure Milk Association, Plaintiff-Appellant, v. Kraft Foods Company, Defendant-Appellee.
    Gen. No. 10,819.
    Second District.
    September 27, 1955.
    Additional Opinion, December 30, 1955.
    Rebearing denied December 30, 1955.
    Released for publication December 30, 1955.

      Martin. Burns, of Chicago, and Philip L. Keister, of Freeport, for appellant.
    Louis A. Nack, of Galena, and Marshal Wiedel, of Chicago, for appellee; Nack & Nack, of Galena, and Snyder, Chad-well & Fagerbnrg, of Chicago, of counsel.
   JUSTICE DOVE

delivered the opinion of the court.

By this appeal, Pure Milk Association, a corporation, hereafter referred to as plaintiff or P.M.A., seeks to reverse a decree of the Circuit Court of Jo Daviess County dissolving a temporary injunction previously granted and dismissing its amended complaint for -want of equity. The action sought to enjoin Kraft Foods Company from tortiously interfering with a certain contractual relationship existing between the plaintiff and its dairy farmer members who deliver milk to the defendant and also sought to recover damages for inducing the members of the P.M.A. to breach their several contracts with the plaintiff.

The issues made by plaintiff’s amended complaint and defendant’s answer were submitted to the chancellor upon the pleadings and upon a stipulation of facts.

The plaintiff is a corporation organized under the provisions of the Agricultural Cooperative Act of Illinois, and the defendant is a Delaware corporation, licensed to transact business in Illinois and operates a factory at Stockton, Illinois, where it manufactures cheese from nongrade A milk which it purchases from dairy farmers residing in that area. Prior to the time this action was commenced, plaintiff had entered into marketing agreements herein referred to with approximately two hundred dairy farmers who live in the vicinity of Stockton and who were then customers of the defendant, selling to the defendant nongrade A or grade B milk. Within a few days after a dairy farmer entered into a marketing agreement with the plaintiff, the plaintiff notified defendant of this fact and gave defendant the name, address, milk can number, and certain other data concerning the producer and advised the defendant that such person was authorized to deliver milk to the defendant.

This marketing agreement executed by the plaintiff and by the producer refers to the producer of milk as “member” and recites that the member owns dairy cows and desires to have the milk from such cows sold by or through the plaintiff association. The agreement then provides: “(2) Member shall deliver all milk produced by him or under his control, to Association or such other person at such time and place and in such form and manner as shall be designated by Association. Milk consumed on the farm where produced is not included herein. (3) Association agrees to handle or market and sell in its natural or processed state all milk so produced and delivered, in such form and manner as association deems best for the advantage of all persons signing agreements similar hereto and to blend the proceeds thereof with proceeds derived from milk delivered by other producers and establish returns therefor, in such manner as Association shall determine, giving consideration to quality, location of farm where produced and market in which the milk is sold. (4) Association shall pay or, at its option, authorize the buyer to remit to Member all money due for Member’s milk less twenty-five cents (25$) each year for a subscription to ‘Pure Milk’ and the amount determined by its Board of Directors as required for Association, which Member authorizes to be deducted and directs the buyer to pay to Association upon its demand. The amount deducted for Association shall be limited by resolution adopted at each regular annual meeting and may be limited by resolution adopted at any special meeting called for all members of Association. (5) Member gives Association full power and authority in its own name, to collect the entire amount due for milk delivered hereunder and Association guarantees payment to Member of all sums which are due under the terms hereof.”

It was stipulated that during the period here involved the amount determined as required by the plaintiff, pursuant to the provisions of section four (4) of this agreement, was three cents per hundred weight of milk marketed by its members and that all the milk received by defendant from the plaintiff’s members was nongrade A milk.

On June 29, 1953,. the plaintiff wrote defendant as follows: “Following our uniform marketing agreement with dairy farmers, beginning with deliveries July 1 next and continuing until changed, kindly remit all money payable for non-grade A milk received from members of this association directly to this office. The names and addresses of members are enclosed, along with copy of the contract in question. Names of other dairy farmers we direct to deliver milk to you will be sent along as contracts are accepted here in same manner we have.done before. We will furnish you with a Pure Milk Association producer payroll form, a copy of which is enclosed, twice each month. We ask that you furnish us with price, patron weights, hauling rates and deductions for supplies, etc. which are customarily made by your plant. This information should be furnished us not later than the fifth and twentieth of the month immediately following the first and second half month delivery periods. Individual producer check to our member will be prepared and mailed from this office. Tour cooperation in this and other matters will be appreciated. Copy of this letter is going forward to each member concerned with our letter to the group which is also enclosed for your information.”

On the same day, June 29, 1953, the plaintiff wrote to each of its members delivering nongrade A milk to defendant as follows: “Because the Kraft Foods Company have refused to deduct check-off for Pure Milk Association, as authorized in your signed membership agreement, we have notified them to start to pay us for milk delivered by you starting with July 1st shipment. We, of course, in turn will pay you at regular prices less 3‡ per cwt. check-off on usual pay days.” A copy of this letter was enclosed by plaintiff in its letter to defendant of the same date.

Instead of complying with this request to remit all money payable for milk received from members of the Association directly to the plaintiff, the defendant, on July 2,1953, wrote its customers who were members of P.M.A. this letter:

“July 2, 1953
“Dear Patron:
“We find it necessary to write you regarding the most recent information received from the Pure Milk Association.
“According to the membership contract signed by some of our B patrons, members are committed to pay dues to the Pure Milk Association based upon all milk delivered to the Kraft plant at Stockton.
“The Pure Milk Association has requested us to deduct said dues (currently three cents per cwt.) from members’ milk checks as such dues, and remit the funds deducted to them. After careful consideration, we have informed the Pure Milk Association officials that we prefer not to assume the responsibility and expense for this check-off of dues.
“The Association has advised us that they intend to enforce the clause in the contract requiring us to make payment to the Association for all milk delivered to Kraft by B members.
“For over forty years we at Stockton have valued the privilege of serving and working directly with our patrons, and we sincerely regret that this relationship must be changed in any respect.
“In order for us to comply with their wishes, it will be necessary for us to know if you intend to pay your P.M.A. dues directly to the Association, or if you want us to forward full payment of your milk to the Association. It will be appreciated if you will inform us which of these two methods you prefer. Please indicate your preference on the attached postal card and mail it to us as soon as possible.
“Sincerely,
“Kraft Foods Company H. W. PARKINSON Plant Manager”

The postal card referred to in this letter was as follows:

“Kraft Foods Company — Stockton, Illinois
“Dear Sir:
“Effective with deliveries on and after 7-1-53:
“(. . . .) 1. I want to pay my PMA dues directly to PMA and continue to receive a check from Kraft covering payment for my milk.
“(. . . .) 2. Please issue payment for my milk to the Pure Milk Association. I understand that I will receive a check covering payment for my milk from PMA.
“(Please check One)
“Ñame: ■-
(Sign Here)
“Address: -”

In response to this letter of the defendant, about one-half of plaintiff’s patron members indicated they desired to pay their dues directly to P.M.A. and to continue to receive their milk check in full from defendant. The other one-half instructed the defendant to send their entire milk check to the plaintiff. Defendant followed the directions of its patrons in this respect and paid part of them directly and remitted to P.M.A. for those who desired their checks to be handled in that manner.

Following this correspondence, plaintiff filed the instant complaint on August 18, 1953, and thereafter, on January 14,1954, its amended complaint. On February ‘24, 1954, the plaintiff sent to defendant 199 original contracts which it had entered into with dairy farmers in the Stockton territory. Accompanying these contracts was a letter from the plaintiff to the defendant in which it was stated: “These dairy farmers have delivered or are delivering milk to your plant in Stockton under and pursuant to the provisions of the respective agreements enclosed. When these contracts have served the purpose of notifying your company of the existence thereof please return for permanent filing in Association offices.” These contracts were duly received by defendant and thereafter by it returned to the plaintiff.

Counsel for appellant insist that appellee had notice and knowledge of appellant’s contracts with the dairy farmers from whom appellee received milk; that these contracts authorized appellant to collect from defendant the proceeds derived from the sale of this milk and were, in fact, assignments to appellant of the amounts indicated; that upon receipt of notice of these contracts and its provisions, appellee became liable to pay appellant the amounts so assigned to it — that is, either all money due for milk which appellee received from appellant’s members or, at appellant’s election, appellee was obligated to pay to appellant the amount of the checkoff, being three cents per cwt.; that appellee’s refusal to recognize appellant’s rights under these contracts and its transmission to appellant’s members of the letters referred to encouraged those members to breach their agreements with appellant and amounted to a tortious interference by appellee with the contractual relationship existing between appellant and its dairy farmer members.

Appellee’s position is that the membership agreements created a principal-agent relationship between plaintiff and its members, with the dairy farmer as the principal and appellant as the agent, and that when the plaintiff demanded from the defendant payment to it of all money due for milk which the defendant purchased from its dairy farmer patrons who had signed the membership agreement, defendant had no notice or knowledge of these membership agreements or their provisions, and because of the unusual nature of the demand made upon it by plaintiff, it felt required to inquire of its patrons who had signed such agreements concerning the existence of the agreement and the provisions thereof; that if the inquiry made by appellee influenced any dairy farmer to breach his contract with appellant, the defendant did not intend such an effect and, therefore, is not responsible. With reference to the “check-off,” appellee insists it was not obligated to make the same because of the expense, uncertainty, and hardship involved if it undertook to do so.

Prior to the time appellant entered into any contract with producers of milk in the Stockton area, these producers were selling their milk to appellee. Upon entering into a contract with a producer, appellant wrote appellee giving appellee the name and address of the new member, his contract and can number, and the effective date when the new member was authorized by appellant to deliver his milk to appellee. After the amended complaint was filed and almost four months before the case was heard by the chancellor, appellant sent to appellee 199 original contracts and advised appellee that the milk these contract producers were delivering to appellee was being delivered pursuant to the provisions of their several agreements with appellant. There is, therefore, no merit in appellee’s contention that it had no notice or knowledge of these membership agreements or their provisions. Appellee knew that these contracts authorized appellant to collect from appellee the entire amount of money appellee became obligated to pay for the milk so received by it or, if appellant so elected, it was authorized to request appellee to remit to the member the entire amount of money appellee became obligated to pay for the milk so received less twenty-five cents each year for a subscription to “Pure Milk” and less the checkoff amounting to three cents per cwt. of milk.

What led to the filing of the instant complaint was the refusal of appellee to comply with appellant’s request to make this checkoff by deducting three cents per cwt. and remit that sum to appellant, which appellee refused to do, followed by appellee’s subsequent refusal to pay appellant the entire amount due from appellee for milk delivered to appellee by appellant’s members.

• The principal question which arises upon this record for our determination is whether appellee’s letter of July 2, 1953, and its subsequent conduct constitute a wrongful interference with appellant’s contract with its members. In answering that question, we will first determine whether appellee was warranted in refusing appellant’s request to make the three cents per cwt. checkoff and then whether appellee was under any obligation to pay appellant the entire amount due for milk delivered to appellee by appellant’s members.

In Pacific Mills v. Textile Workers’ Union of America, Local No. 254, 197 S. C. 330, 15 S.E.2d 134, 135 A. L. R. 497, the plaintiff, Pacific Mills, sought to enjoin the defendant Union against the enforcement of an assignment by each of eleven hundred employees of the plaintiff, members of the defendant Union, who, by an appropriate instrument, had assigned to the Union $1.00 per month from his wages for work done or to be done by the member for the plaintiff, each employee having authorized and directed plaintiff, as employer, to pay the Union said amount. It appeared that the employer had entered into a contract with the Union, but the contract contained no “check-off” provision. In reversing the decree of the trial court dismissing the suit, the Supreme Court held the assignments void and of no effect so far as the employer was concerned and directed an injunction to issue. In the course of its opinion the court said:

“The only contract involved in this case to which appellant is a party, is its contract to pay its employees a certain compensation or wage for their services and under the law as it has been declared by our Courts, to pay the whole of said compensation or wage to either the employee or to any one assignee thereof, but there is no contract to pay except as a single act. In fact, appellant refused to enter into a contract with respondent Union as the bargaining agent for its employees which embodied the ‘check-off’ system; that is, the deduction from the pay of such employees as were members of respondent Union of the sum of $1 per month, and pay same over to the respondent Union. For a Court to enforce such partial assignment of wages would be tantamount to compelling appellant to enter into a contract, or writing a clause into a contract to which appellant objects. It is the duty of Courts to enforce contracts, but to refrain from making them. Stating the matter from another viewpoint, the enforcement of these partial assignments, and it is conceded by the parties to this action that the wage assignments involved are partial assignments, would be to force appellant to become the agent of such of its employees as are members of respondent Union and have executed a partial assignment of their wages to the Union, and also the agent of the respondent Union to collect from the one and to pay over to the other. The appellant has the legal right to refuse to accept such an agency even if it were offered compensation for the additional work thus devolved upon it. The appellant and the respondent Union, one a private corporation, the other an association of individuals, occupy no different position from that of any other class of citizens in the eyes of the law in South Carolina.
“While the Courts of this State recognize a partial assignment of a chose in action as an equitable assignment and will protect the assignee when they can do so without working a hardship upon the debtor, yet the enforcement of such partial assignment can only be had in a Court of Equity. See Carwile, Rec’s, v. Metropolitan Life Insurance Company, 136 S. C. 179, 134 S. E. 285.
“At the present time there has been filed with appellant approximately 1,100 of these partial assignments. Basing the calculation on 1,100 assignments, it is the finding of the Master, concurred in by the Circuit Judge, that it will require the services of or the additional work of one person an average of six hours per week to collect these dues.
“The record discloses that at the time of the taking of testimony in this case, the respondent Union had an additional 300 of these partial assignments, and that it intends also filing these with appellant. And, of course, as the membership of respondent Union increases (appellant has 2,300 employees) additional assignments will be filed with appellant. And, correspondingly the burden and hardship increases.
“Furthermore, if appellant can be compelled to recognize these partial assignments, either at law or in equity, then all other partial assignments which may be executed and delivered by appellant’s employees would likewise have to be honored; and carried to a logical conclusion, appellant would have to do a banking business insofar as open checking accounts are concerned.
“It will therefore be seen that aside from the possibility of making errors in the collection of these dues, for which appellant would be answerable, and the possibility of having to defend actions for wrongfully deducting dues where there is a dispute as to whether an employee has actually executed an assignment, the appellant would suffer financial burden and hardship if it be compelled to recognize these partial assignments, and this we hold as a matter of law, would be a burden and hardship to which a court of equity cannot lend its aid.”

While appellant in this action does not seek to recover directly from appellee the amount which it claims it is entitled to receive by virtue of the three cents per cwt. clause of its contract with its members, the principles announced in Pacific Mills v. Textile Workers’ Union, supra, are applicable. In our opinion, upon this record, appellee should not be required or obligated to recognize this provision in appellant’s marketing agreement and, so far as appellee is concerned, this provision is unenforcible.

Whether appellee was under any obligation to pay appellant the entire amount due from it for milk delivered to appellee by appellant’s members presents a different question. Appellee had been advised by appellant that its members were authorized to deliver milk to appellee. Appellee also knew the provisions of the marketing agreement which gave appellant “full power and authority in its own name, to collect the entire amount due for milk delivered” under its contract with its members. On June 29,1953, appellee was furnished with copies of the contract executed by P.M.A. and its producing-members and a request from appellant to remit all money payable for milk received from its members direct to appellant. It refused to do so until it received a card from the producer directing appellee to “please issue payment for my milk to Pure Milk Association.” From the members who requested appellee to remit to them a check covering payment for milk delivered by them, appellee refused to recognize the provisions of the membership agreement and remitted directly to the producer.

Under our statute relating to assignment of accounts receivable (Ill. Rev. Stat. 1953, chap. 121½, sec. 220 [Jones Ill. Stats. Ann. 109.312(1)]) sales of milk and the sums due the members of P.M.A. from appellee for milk delivered by them to it created accounts receivable and were subject to assignment. Section 221 [Jones Ill. Stats. Ann. 109.312(2)] of said chapter, being par. 2 of the same Act, provides: “Every assignment of an account receivable heretofore or hereafter made in writing for valuable consideration shall be valid and shall be deemed and held to have been fully perfected at the time such assignment was or is made, notwithstanding that the obligor be not notified of or does not assent to such assignment.” Appellant, under its contract with its members, had a right to collect from appellee for the milk delivered by its members to appellee. The language used in the membership agreement shows an intention on the part of the member, the creator of the account receivable or chose in action, to transfer it to appellant and that was sufficient to vest the same in appellant (4 Am. Jur., Assignments, Sec. 75, p. 287). Appellee recognized this, and upon the return to it of the card of a member directing it specifically to issue payment for the member’s milk to appellant, it did so.

The gravamen, however, of appellant’s complaint is appellee’s letter of July 2,1953, to its members and the postal card enclosed therewith. The breach of the membership agreement complained of occurred when appellee received from approximately one-half of appellant’s members a request directing appellee to send to each of them the entire amount of his milk check. When the member did this, he did so in violation of the provisions of section 5 of his contract with appellant. That section gave appellant “full power and authority in its own name to collect the entire amount due for milk delivered” under the contract.

Counsel for appellee argue that even though a breach of contract between appellant and its members occurred, it cannot be held that appellee purposely caused such a breach as appellee did nothing to persuade any member of P.M.A. to breach his contract. Counsel for appellant insists that the letter of appellee of July 2,1953, not only encouraged but invited appellant’s members to breach their membership agreement with it and particularly direct our attention to that portion of this letter which said: “In order for us to comply with their wishes (i. e. to pay appellant for all milk delivered to appellee by members of P.M.A.), it will be necessary for us to know if you intend to pay your P.M.A. dues directly to the association, or if you want us to forward full payment for your milk to the Association.” Counsel for appellant state that this is a clear offer by appellee to assist the members of P.M.A. to breach their contracts by paying them the full proceeds of their milk and, to substantiate that conclusion, call to our attention the fact that after the card sent out on July 2, 1953, had been returned by one-half of appellant’s members requesting appellee to send their milk check to appellant, appellee, on July 24, 1953, again wrote the several members of P.M.A. informing them that one-third of their Stockton patrons were members of P.M.A.; that appellee could not become a collection agency for any organization; that less than one-sixth of its patrons had instructed it to issue payment for their milk to P.M.A.; that they will issue one check only to P.M.A. for all milk delivered by its patrons; that P.M.A. would then issue separate checks to its members, and that all other parties would continue to receive their milk checks directly from appellee.

The facts are that approximately one-half of the members of appellant breached the provision of their contracts with appellant when in answer to appellee’s inquiry they directed appellee to send their milk checks directly to them. Who, if not appellee, was responsible for this Counsel for appellee assert that when appellee received from appellant a demand to remit to it all money payable for milk delivered to appellee by appellant’s members that it then became the duty of appellee to inquire from each member his wishes and that appellee was entitled to be advised of the existence and scope of appellant’s agency and that there is nothing contained in its letter of July 2, 1953, that can be said to indicate a desire upon the part of appellee that the members of P.M.A. select one of the two offered options in preference to the other for payment for their milk. The answer to this assertion is that appellee already had that information. It had had it since July 25, 1952, at which time plaintiff furnished defendant with the names of its producer-members, their respective addresses, their milk-can and contract numbers, and the effective date of the contracts. If appellee had no intention of procuring any member of P.M.A. to breach the provisions of his contract with appellant, it would have complied with the authorization contained in the contract and sent its check to appellant, as the contract provided, and not communicated with the member. Appellee, in this letter of July 2, 1953, didn’t inquire whether the patron had executed any contract with P.M.A. or whether the contract, which it knew about, had been terminated, amended, or whether it gave appellant the authority it claimed. It inquired whether the member wished to receive his milk check direct from appellee. It accomplished, in our opinion, just what it was intended to accomplish when in reply one-half of appellant’s members directed appellee to send their milk checks direct to them, thereby breaching what appellee knew was a provision of the members’ contract with appellant.

The author of the article on Interference in 30 Am. Jur., Sec. 19, pp. 71-72, says that the weight of authority supports the rule that an action will lie against a person who, otherwise than in the legitimate exercise of his own right, procures a breach of any contract, even though it is not a contract of employment. The author of this article then continues: “The theory of this doctrine is the right to perform a contract and to reap the profits resulting from such performance, and also the right to performance by the other party, are property rights which entitle each party to protection, and to seek compensation by action in tort for any injuries to such contract.” In support of the text, Bloom v. Bohemians, 223 Ill. App. 269, and Doremus v. Hennessy, 176 Ill. 608, are cited. In the Bloom case the court sustained a judgment for damages based upon the action of the defendant in inducing an actor to leave the employment of the plaintiff and enter the service of the defendant before his contract with the plaintiff had expired. In the Doremus case the court sustained a judgment for the plaintiff holding that the evidence disclosed that the defendants induced certain persons to terminate their contractual relations with the plaintiff. In both cases the court cited and quoted from Bowen v. Hall, 50 L. J. Q. B. 305, where it is said: “Merely to persuade a person to break his contract may not be wrongful in law or in fact. But, if the persuasion be used for the indirect purpose of injuring the plaintiff or of benefiting the defendant at the expense of the plaintiff, it is a malicious act, which is in law and in fact a wrong act, and therefore a wrongful act and therefore an actionable act if injury ensues from it.”

This contract, executed by appellant and its members, created a principal and agent relationship to which appellee was not a party. It became involved, however, when it received milk from a party to the contract. Appellee was advised of this relationship which existed between appellant and its members and knew the provisions of the contract which established the principal-agency relationship. Under the authorities, it owed appellant the duty not to persuade or solicit its members to breach their contract. Appellee violated that duty and is responsible to appellant for the damages occasioned thereby.

The decree of the Circuit Court is reversed, and this cause is remanded with directions to proceed in accordance with the views herein expressed.

Reversed and remanded.

EOVALDI and CROW, JJ., concur.

Additional Opinion on Petition rok Rehearing

In their petition for rehearing, counsel for appellee state that they are in accord with our statement that the gist of this case is whether defendant, in sending its letter of July 2,1953, to members of P.M.A. sought to induce those members to breach their contracts with the plaintiff. Counsel then state, and we agree, that defendant’s conduct could not possibly be deemed wrongful prior to defendant’s acquiring knowledge of the existence of the relationship which existed between plaintiff and its members. Therefore the remaining decisive question is the time defendant knew of the relationship which existed between the plaintiff and its producer-members. Defendant insists that it did not have this knowledge until it received the letter of plaintiff of February 24, 1954, and the accompanying parcel containing the original contracts of P.M.A. and its producer-members. From the pleadings and stipulated facts, the conclusion, however, is inescapable that defendant had this knowledge on and prior to July 2, 1953.

The amended complaint alleged that on or about July 25, 1952, the plaintiff informed defendant by letter of the effective date of its marketing agreement with R. M. Funston and thirty-eight other dairy farmers, giving to defendant the contract number and can number. The answer of the defendant states: “It (defendant) admits that it received a letter from plaintiff dated July 25, 1952, a copy of which is attached hereto as exhibit 1 and by this reference made a part hereof. ... It admits that it has received other letters from plaintiff similar in form to said exhibit I. . . . It admits that all dairy farmers with respect to whom plaintiff has addressed correspondence to defendant similar in form to said exhibit 1, have, both prior and subsequent to such correspondence, delivered grade B milk to defendant at its said establishment at Stockton, Illinois, and that plaintiff by such correspondence has purported to inform defendant that such deliveries were made to defendant pursuant to the authorization and direction of plaintiff.” The letter of July 25,1952, referred to in .the pleadings, stipulation, and opinion, is as follows:

“Kraft Foods Company July 25, 1952
505 N. Sacramento Blvd. Delivery Point
Chicago 12, Illinois Stockton, Ill.
Grade B
Gentleman: Attention C. W. Krefft
The following members of Pure Milk Association are authorized to deliver milk to you:
Contract Cans Name and Address Effective
Number Number of Member Date
(Please note attached list)
Thank you for your cooperation.
Very truly yours,
Pure Milk Association
Kraft Foods Company — -Stockton Plant — Grade ‘B’
505 N. Sacramento Blvd.,
Chicago 12, Illinois — All Producers Listed — Effective 8-1-52
Name and Address Contract No. Can No.
Elmer Carroll 42808 #14
R#l, Elizabeth, Illinois
Leland Pierce, Sr., and 42831 #25
Leland Pierce, Jr.
R#3, Stockton, Illinois
(Then follows the name, address, contract number and can number of 37 other persons)”

Upon the hearing, it was stipulated that on or about the effective dates of a contract between plaintiff and its producer-member the plaintiff mailed to defendant and defendant received a letter similar to its letter of July 25, 1952. In its letter of June 29, 1953, set forth in the opinion, plaintiff furnished defendant with the names and addresses of its members and a copy of its contract with those members. If appellee had no knowledge of the provisions of the contract of P.M.A. and its producer-members why did it refuse to deduct and remit to P.M.A. the 3‡ per cwt. checkoff to plaintiff as therein provided?

. By its answer to the amended complaint, defendant admitted that plaintiff requested it to withhold this checkoff, admitted receiving a registered letter dated June 29, 1953, from P.M.A., requesting that this be done and made a copy of that letter a part of its answer. It is apparent that defendant had knowledge of the provisions of P.M.A.’s contracts with their producing-members prior to the time it wrote its letter of July 2, 1953.

The opinion is slightly modified, and, as modified, the petition for rehearing will be denied.

Rehearing denied.


source: Caselaw Access Project

author: PRESIDING JUSTICE BARDENS

license: Public Domain

text:
    J. H. Walters & Co., Modern Plumbing & Heating Co., Inc., John Barrett, d/b/a James Barrett Sheet Metal Contracting Company, Ralph E. Gissal, d/b/a Ralph E. Gissal Heating Service, Charles J. Pitts, d/b/a Pitts Sheet Metal and Heating Company, and George W. Bock and Emmett C. Hunt, d/b/a Elk Heating & Sheet Metal Company, Plaintiffs-Appellees, v. Canham Sheet Metal Corporation, Defendant-Appellant, and Local Union No. 268 of Sheet Metal Workers Association, A. F. of L., Appellant.
    Term Nos. 55-0-21, 55-0-24.
    Fourth District.
    November 29, 1955.
    Released for publication December 21, 1955.

      Case No. 55-0-21: Verlie, Eastman, Schlafly & Godfrey, of Alton, for defendant-appellant; Harry H. Marshall, of Alton, of counsel; Sale, Gruenherg & Eliseuson, of St. Louis, Missouri, for appellant; John M. Schobel, of St. Louis, Missouri, of counsel.
    John W. Hoefert, and Eoss Armbruster, both of Alton, for plaintiffs-appellees.
    Case No. 55-0-24: Verlie, Eastman, Schlafly and Godfrey, of Alton, for defendant-appellant; Harry H. Marshall, of Alton, of counsel.
    John W. Hoefert, and Eoss Armbruster, both of Alton, for plaintiffs-appellees.
   PRESIDING JUSTICE BARDENS

delivered the opinion of the court.

This matter involves two appeals which have been consolidated for hearing. The appeal is from a temporary injunction issued without notice and without bond.

Plaintiffs on July 7, 1955, filed their verified complaint in the court below, the material parts of which are as follows:

“1. They are owners and operators of Sheet Metal Companies which are licensed and doing business in the State of Hlinois and which said companies are situated in and around, Alton, Hlinois, in Madison County.
“2. Defendant, Canham Sheet Metal Corporation, is a corporation licensed and doing business in the State of Illinois with, its principal place of business at 1480 Pearl Street, Alton, Illinois.
“3. On or about June 30, 1955, the Plaintiffs and Defendant entered into an oral agreement.
“4. Under this agreement, Plaintiffs and Defendant mutually promised and agreed to refrain from executing any wage contracts and from dealing individually with the Sheet Metal Workers Union, Local No. 268, in regard to wage and labor negotiations between said union and said employers, and to act in concert in regard to such dealings.
“5. That the contract of employment between the owners and operators of such sheet metal business and the said Union expired on June 30, 1955, and has not yet been renewed.
“6. On or about July 1, 1955, the Defendant made an individual agreement with the said Union, contrary to the contract entered into between Plaintiffs and Defendant as set out in Paragraphs 3, 4, and 5.
“7. By entering into an individual agreement with the said Union, the Defendant is operating his business while Plaintiffs are not operating their business, that thereby Defendant is taking unfair advantage of Plaintiffs, and is engaging in unfair competition and the Defendant has damaged and will continue to damage Plaintiffs irreparably unless Defendant be immediately enjoined without notice and without bond from further operation of its Sheet Metal Business until such time as Defendant has acted pursuant to the contract between the Defendant and Plaintiffs.”

Temporary injunction without notice and without bond was issued on the same date restraining defendant from operating its business. The injunction order was served on the defendant on the same date also. Thereafter defendant filed a motion to dissolve. This motion was argued and the injunction order was modified restraining defendant from operating its business only in so far as the business was operated under a contract executed with Local Union No. 268 of the Sheet Metal Workers Association on July 1, 1955. The modified order, entered July 12, 1955, denied the motion to dissolve but required a bond of plaintiffs in the sum of $15,000. Such bond was filed and approved.

Thereafter, on July 21, 1955, Local Union No. 268, although not a party to the suit, filed a notice of appeal in the cause and thereafter an interlocutory appeal bond executed by defendant Canham Sheet Metal Corporation and said Local Union No. 268 was presented to the court, approved, and filed. The record was filed in this court within the thirty days prescribed by statute. Plaintiffs then filed in this court a motion to dismiss this appeal on the grounds that the appeal was jointly prosecuted by a party to the record and by Local Union No. 268 who was not a party to the record; that the Union was appealing by notice of appeal and the defendant under the interlocutory appeal statute; and that the attempted joinder destroyed the entire appeal. Thereafter, but still within the thirty days required by statute, the defendant Canham Sheet Metal Corporation filed another interlocutory bond which was approved by the clerk of the court, which bond was not signed by the Local Union. The record on this appeal was also filed within the time allotted. The plaintiffs then filed a motion to dismiss the second appeal on the grounds that another appeal in the same cause by the same party was pending in this court and thus the second appeal was a nullity.

As above noted, the two appeals were consolidated for hearing and the motions to dismiss were taken with the case. We will first discuss and pass upon the motions to dismiss the appeals.

The right of appeal is a statutory right and the statute granting it must be strictly followed or the appeal dismissed. This proposition has been passed upon by the courts in scores of cases, one of the later being the People v. Bristow, 391 Ill. 101, 123, 62 N.E.2d 545. For many years the provisions for appeal from final orders and judgments have followed an entirely different pattern than those from interlocutory orders. Quite obviously this difference was adopted in order to facilitate speedier appeals and decisions in interlocutory order cases. Prior to 1887 no appeal from an interlocutory order was permitted. The original law providing therefore was the law of 1887, page 250, and the Practice Act of 1907 carried it forward without material change as Section 123 of said act. The present act, being paragraph 202 of Chapter 110 of the Illinois Revised Statutes [Jones Ill. Stats. Ann. 104.078] made changes as to the time of filing record, as to the approval of bond, and as to stay of order pending appeal. However, its objectives are the same as the previous act as the present act is designed to avoid delay that is necessary in appeals from final judgments. The essential steps necessary, however, remain the same as in the original act.

The present provisions for interlocutory appeals, like the provisions in the 1907 Practice Act, provide for two necessary steps. One is a bond approved by the clerk or the court and filed within thirty days. The second is the filing of the record within the prescribed time in the Appellate Court. Under the present act the time limit for filing the record is thirty days except that that time may be extended by the court. No prayer for appeal is necessary as it was for appeals from final judgments under the 1907 Practice Act. No notice of appeal is necessary. The appeal is commenced by the approval and filing of the bond and perfected by the filing of the record within the allotted time. The statute provides, “Upon the filing of the record in the Appellate Court the same shall there be at once docketed, and shall he ready for hearing under the rules of said Court, taking precedence over other cases in said court.” See McCarthy v. City of Chicago, 197 Ill. App. 564, for a full discussion of interlocutory appeals.

With these principles in mind, we find that the defendant Canham Sheet Metal Corporation has met the two requirements of the statute in its first appeal. It has filed a bond approved by the lower court and filed the record both within the time allotted. The notice of appeal filed by the Union was unnecessary and a nullity. The fact that the Union was on the bond was immaterial so long as the bond was conditioned properly and duly approved. The fact that the Union joined in the abstract and briefs was of no prejudice to plaintiffs since they did not ask for dismissal of the Union from the cause or from the abstracts and briefs, but only for dismissal of the appeal. In our opinion, the defendant Canham Sheet Metal Corporation conformed substantially to the statute and the first appeal was properly perfected.

Plaintiffs’ authorities in support of their motion to dismiss the first appeal may be grouped together as applying to appeals from final judgments under the practice prior to the present Civil Practice Act. In those authorities appeals were dismissed for the reason that the appellants failed to conform to the statute or to the order of the court to whom the prayer for appeal was addressed. As noted before, appeals from final orders and judgments follow an entirely different pattern than appeals from interlocutory orders. Cases cited showing dismissals of appeals from final orders are therefore of no value in interlocutory appeals.

The motion to dismiss the appeal in case No. 55-0-21 is therefore denied. Since, however, the appeal in No. 55-0-24 was a second attempt to appeal from the same order by the same party, the motion to dismiss that appeal is allowed.

We turn now to the merits of the controversy. The complaint has heretofore been set forth. Since the injunction was granted without notice, the complaint must be sufficient to authorize the writ. Stenzel v. Yates, 342 Ill. App. 435, 96 N.E.2d 813. Scholz v. Barbee, 344 Ill. App. 630, 101 N.E.2d 845. City of Edwardsville v. Illinois Terminal R. Co., 350 Ill. App. 63, 111 N.E.2d 707. Brown Music Co. v. City of Sullivan, 350 Ill. App. 400, 113 N.E.2d 208. Callahan v. Holsman, 351 Ill. App. 1, 113 N.E.2d 483. We have held in such cases that the complaint must on its face show facts that justify the relief and that a statement that plaintiffs “will suffer irreparable injury” is insufficient without facts to support it. Stenzel v. Yates, 342 Ill. App. 435, 96 N.E.2d 813. See also Liberty Nat. Bank of Chicago v. Metrick, 347 Ill. App. 400, 106 N.E.2d 889. The complaint in the instant case alleged that defendant breached a contract and that it was operating its business and that plaintiffs were not. The complaint shows on its face that the place of business of the defendant was in the same city as the lower court and the record shows that the injunction writ was served on defendant on the same date that the order was signed. There are no facts stated in the complaint which even tend to show that irreparable injury would ensue from the short delay that would be required by the giving of notice. We hold, therefore, that the injunction was improvidently granted.

Motion to dismiss appeal in No. 55-0-21 denied. Motion to dismiss appeal in No. 55-0-24 allowed and appeal dismissed. Orders granting temporary injunction and overruling motion to dissolve are reversed and the cause is remanded for further proceedings.

CULBERTSON and SCHEINEMAN, JJ., concur.


author: JUDGE CARROLL

text:
    American Dixie Shops, Inc., Plaintiff-Appellee-Cross Appellant, v. Springfield Lords, Inc., William Phillips, Floyd R. Rambach, Defendants-Appellants-Cross Appellees, and Harry B. Luers and Cordie E. Luers, Defendants-Cross Appellees.
    Gen. No. 10,052.
    Third District.
    December 5, 1955.
    Released for publication December 27, 1955.

      Barber & Barber, of Springfield, for defendants-appellants, Springfield Lords, Inc., and William Phillips, and for defendants-cross-appellees, Harry B. Lners, and Cordie E. Lners; Clayton J. Barber, and Alton Gr. Hall, both of Springfield, of counsel; Ensel, Martin, Jones & Blanchard, and Arthur M. Fitzgerald, all of Springfield, for appellant, Floyd R. Rambach; James B. Martin, of counsel.
    Griffin, Winning, Lindner & Newkirk, and Charles Gr. Briggle, Jr., all of Springfield, for plaintiff-appelleecross appellant, American Dixie Shops, Inc.; Robert H. Brunsman, and Walter Siebert, both of Springfield, of counsel.
   JUDGE CARROLL

delivered the opinion of the court.

The defendants, Springfield Lords, Inc., William Phillips and Floyd R. Rambach (hereinafter referred to as Lords, Phillips and Rambach) appeal from an interlocutory order denying their motions to dissolve a temporary injunction.

The verified complaint was filed January 17, 1955 and alleges: that under a lease dated September 1,1948 and extension thereof dated April 15, 1954 from defendant Floyd R. Rambach, a copy of said lease and extension thereof being attached to the complaint, plaintiff is in possession of the first floor of certain real estate, described in said lease by metes and bounds, and known as 526 East Adams Street, Springfield, Illinois; that defendant Lords as successor to Betty Gay Vogue, Inc., under a lease from Rambach and Harry B. and Cordie E. Luers is in possession of certain premises known as 528 East Adams Street, Springfield, Hlinois and which adjoins the premises occupied by plaintiff on the East; that both of said tracts of land are improved with a three-story brick building; that said buildings are divided by a single wall; that the front of both buildings is improved with a glass window for the purpose of displaying merchandise to the general public; that in approximately the center of the front of said buildings there is an entrance approximately five feet wide and five feet deep extending from the North line of the buildings to a stairway leading to the second and third floors thereof; that on the West side of said stairway entrance, there is an additional glass window approximately four feet in width by eight feet in height which forms a part of the windows located in the front of the building occupied by plaintiff and used for displaying merchandise to the public; that the glass windows and stair entrance, as the same now exist, were installed about July 1, 1936 and have since so remained with the knowledge and consent of the then and subsequent owners including Rambacb; that Rambach leased the second and third floors of the premises occupied by plaintiff to Lords for a term of thirty years beginning January 1, 1955 and purportedly leased to Lords the East three feet of the North twenty feet of the Rambach property or approximately one-half of the stairway leading to the second floor; that by the terms of the plaintiff’s lease and extension thereof, the lessors reserved the stairway on the East side of the premises leased to plaintiff for the use by all the tenants of said premises; that defendant Lords through its agent, William P. Phillips is actively engaged in making extensive repairs and alterations to the premises described in its lease by use of lumber, steel and other building materials including the entire closing of the entrance to the stairway and the removing of said stairway and in so doing will close plaintiff’s East window fronting on said stairway entrance, thus depriving plaintiff of valuable means of advertising to the public and of its right to light, air and view; that the alteration and repair plans of defendants for the closing of the stairway entrance will constitute continuous and repeated trespasses on plaintiff’s premises and will deprive it of its quiet and peaceful use and enjoyment of its leasehold estate; that the noise and dust accompanying such construction will render the use of the building on the premises of plaintiff unattractive, disagreeable and unfit for the purpose of conducting plaintiff’s business therein; that defendants are actively engaged in carrying out such plans and unless enjoined by an injunction issued immediately and without notice plaintiff will suffer irreparable injury.

On the day the complaint was filed, a temporary injunction was issued, without notice to any of the defendants enjoining defendants Lords, Phillips and Rambach from closing the entrance to the stairway in question and from in any manner interfering with the light, air and view of the window on the East side of the premises known as 526 East Adams Street. The Writ was served the same day on defendant Lords but was not served on Rambach until April 14,1955. Harry B. Luers and Cordie E. Luers were later made parties on motion of Rambach.

All of the defendants filed answers and motions to dissolve the temporary injunction. The motions were heard by the court upon the verified pleadings, affidavits, oral testimony and certain exhibits.

On August 3, 1955, the court entered the interlocutory order from which this appeal has been taken. This order allowed the motions of defendants Harry B. Luers and Cordie E. Luers and dissolved the injunction insofar as it affected any part of the Luers property. It denied the motions of all other defendants except insofar as the temporary injunction covered any part of the Luers property.

Plaintiff has taken a cross-appeal from that part of the interlocutory order dissolving the injunction as to the Luers property.

The defendants Lords, Phillips and Luers have filed a motion to dismiss the cross-appeal and suggestions in support thereof. This motion has been taken with the case.

In support of said motion, it is urged that an appeal from an interlocutory order allowing a motion to dissolve a temporary injunction and dissolving the same, in whole or in part, is not authorized by law and hence this court is without jurisdiction to review the order dissolving the temporary injunction as to the defendants Harry B. Luers and Cordie E. Luers.

The authority of this court to review interlocutory orders concerning injunctions is found in Par. 202, Sec. 78, Chap. 110 Ilinois Revised Statutes 1953 [Jones Ill. Stats. Ann. 104.078], and reads as follows:

“Whenever an interlocutory order or decree is entered granting an injunction or overruling a motion to dissolve the same, or enlarging the scope of an injunction order, or appointing a receiver, or giving other or further powers or property to a receiver already appointed, an appeal may he taken therefrom to the Appellate Court: . . .”

Under the authority granted by this section of the Practice Act, an appeal may be taken from an interlocutory order granting an injunction, enlarging the scope thereof, or overruling a motion to dissolve the same. Plainly, this section makes no provision for an appeal from an interlocutory order allowing a motion to dissolve a temporary injunction. An order allowing a motion to dissolve is interlocutory and, under the general rule that an appeal may be taken only from a final order, is not appealable. An order partially dissolving a temporary injunction is within the purview of the same general rule and an appeal in such case may not be taken. Liberty Nat. Bank of Chicago v. Chicago, 342 Ill. App. 328.

Plaintiff herein seeks to prosecute a cross-appeal from the interlocutory order dissolving the temporary injunction insofar as the same affected or covered any part of the Luers real estate. If we' correctly understand plaintiff’s argument, it is to the effect that since the trial court allowed the motion of the Luers to dissolve the temporary injunction as to their real estate but denied the motions to dissolve of all other defendants, on an appeal from such interlocutory order by the defendants, the plaintiff may take a cross-appeal seeking a reversal of that part of the order allowing the defendants motion to dissolve and for affirmative relief by having the temporary injunction continued in force in its entirety.

While no case sustaining its position is cited, plaintiff argues that the interlocutory order from which an appeal is authorized by Section 78 of the Civil Practice Act, means the whole order or decree and not a part thereof and that an appeal from a part of such, order overruling a motion to dissolve a temporary injunction brings up for review the whole order; that since said Section 78 further provides that:

“Upon such appeal the Appellate Court may affirm, modify or reverse such interlocutory order or decree, and shall direct such proceedings to be had in the court below as the justice of the case may require.”

the Appellate Court has power to make an order substantially affecting the entire interlocutory order of the trial court and that, therefore, plaintiff should have the right to cross-appeal to obtain affirmative relief by way of reversal of the portion of the order dissolving the temporary injunction. Such argument cannot prevail for the reason that there is no statutory authority for the taking of an appeal from an interlocutory order dissolving a temporary injunction. Liberty Nat. Bank of Chicago v. Chicago, supra. That portion of Section 78 of the Practice Act to which plaintiff refers concerns only the authority of the Appellate Court to deal with the subject matter of appeals taken from interlocutory orders where an appeal is authorized.

The rules of the Supreme and Appellate Courts prescribing the practice and procedure by which cases may be reviewed to which plaintiff refers apply to cross-appeals but are not authority for taking such cross-appeals in cases where appeals are not authorized by law.

Supreme Court Rule 35 which requires notice of intention to prosecute a cross-appeal within ten days after service of notice of appeal contemplates an appeal from the same judgment that the appellants have appealed from. Parish Bank & Trust Co. v. Uptown Sales & Service Co., 300 Ill. App. 73.

For the reasons indicated, the motion of the defendants to dismiss the cross-appeal of plaintiff is allowed and the cross-appeal dismissed.

Defendants contend that issuance of the temporary injunction without notice was clearly unwarranted and, therefore, the trial court erred in overruling their motion to dissolve the same.

Par. 3, Chap. 69, Illinois Revised Statutes 1953 [Jones Ill. Stats. Ann. 109.351] provides:

“No court or judge shall grant an injunction without previous notice of the time and place of the application having been given to the defendants to be affected thereby, or such of them as can conveniently be served, unless it appears, from the complaint or affidavit accompanying the same, that the rights of the plaintiff will be unduly prejudiced if the injunction is not issued immediately or without notice.”

As the above Statute clearly indicates, only in those cases where it appears from the complaint or affidavit accompanying the same that the rights of the plaintiff will be unduly prejudiced is a court warranted in granting an injunction without notice to the defendants of the application therefor.

In passing upon the question whether the temporary injunction should have been dissolved, for failure to give defendants the notice required by Statute, we are not concerned with the merits of the controversy. If it appears from the facts that the issuance of the temporary injunction without notice was not warranted then it would be the duty of this court to reverse the order overruling the motion to dissolve the injunction. Brown Music Co. v. City of Sullivan, 350 Ill. App. 400; Kessie v. Talcott, 305 Ill. App. 627.

Since notice of the application for an injunction can be dispensed with only where it is made to appear to the court that the rights of the plaintiffs will be unduly prejudiced, our first inquiry is directed towards ascertainment as to what facts were advanced by plaintiffs from which the court below concluded that notice to defendants would result' in undue prejudice or harm to plaintiff’s rights.

In the instant case the motions to dissolve were heard after answers were filed. Upon the hearing both parties filed affidavits and introduced evidence consisting of oral testimony, a plat and photographs of the premises involved showing the condition thereof at the time the injunction was issued. In this situation, the motions to dissolve the temporary injunction are to be decided upon the weight of the evidence. Dunne v. County of Rock Island, 273 Ill. 53.

As is made clear by the Statute, notice of an intended application for an injunction can be dispensed with only when it appears “from the complaint or affidavit accompanying the same” that plaintiff’s rights will be unduly prejudiced unless the injunction is issued without notice. The eventual right of a plaintiff to the issuance of a temporary injunction is not a factor in determining whether he is required to give notice to the defendant of his application therefor.

In dealing with defendant’s contention that plaintiff has failed to meet the requirements of the Statute pertaining to the giving of notice of its application for the injunction which was issued, we are concerned only with the question of whether it appears from the complaint or affidavits and evidence offered in support thereof that during the time required for the giving of such notice, the defendants intended to and could do something which would amount to destruction of that which is the subject of controversy between the parties and thus obstruct or seriously interfere with the court’s power to justly and effectively deal therewith. Skarpinski v. Veterans of Foreign Wars of United States, 343 Ill. App. 271.

With a view to resolving such question we have carefully examined the allegations of the complaint, which in substance are set forth herein, in an effort to ascertain the reason given by plaintiff for asking the court to dispense with notice of its application for the temporary injunction. These allegations insofar as the same may be pertinent to the question of notice, are that the plaintiff was informed that Lords, by its agent Phillips, pursuant to leases, had entered upon the premises described in the leases including the entrance and stairway and intend and now are actively engaged in making extensive repairs and alterations to the premises, including the closing of the entrance to the stairway and removal of the stairway, blocking off the view of the same, thereby depriving the plaintiff of valuable means of advertising to the public and of its right to light, air and view; that defendant’s plans for remodeling its premises are extensive, requiring certain construction which will constitute continuous and repeated trespasses on plaintiff’s premises; that although requested to do so by the plaintiff, the defendants have refused to desist from their plans to close the entrance and the plaintiff’s window and are now actively engaged in carrying out such intention and will complete the same unless enjoined and restrained by an injunction issued immediately and without notice.

It is obvious from these allegations that the only portion of defendant’s plans for alterations of its premises with which plaintiff was concerned was the entrance to the stairway. By its complaint plaintiff sought an injunction restraining the defendants from closing the entrance to the stairway located between the premises known as 526 and 528 East Adams Street. Allegations as to what alterations defendants were actually making in parts of its premises other than the stairway entrance could have no bearing upon the imminence of the closing of such entrance. Allegations as to what might be the result of the operations of the defendants, if not restrained by injunction, without reference to the element of time necessarily involved can have little bearing on the issue as to whether threatened prejudice to the rights of the defendants demanded that an injunction be issued immediately and without notice. The complaint appears to be completely barren of allegations of fact as to what defendants had done or were doing by way of making any structural changes in the stairway entrance which constituted at least a partial carrying out of their alleged plan to close the same, or what defendants could and would do to close said entrance during the short period of delay which would be occasioned by giving notice to the def endants.

The general allegation by plaintiff that defendants “refused to desist from their plans to close the entrance and the windows” and are engaged in carrying out such plan and will complete the same unless enjoined therefrom by an injunction cannot be said to constitute a clear showing by plaintiff that defendants within the very short time required to give the notice required by Statute would or could close the stairway entrance. Allegations as to plaintiff’s claimed easement for light, air and view and consequent right to have the entrance remain open cannot serve as a substitute for facts demonstrating the necessity of dispensing with notice. The fact that plaintiff might eventually be entitled to an injunction is not involved in determining the issue as to whether notice should or should not have been given. The duty rested upon the plaintiff of making it clear to the court that the giving of notice might result in undue prejudice to its rights and this could only be accomplished by fact allegations demonstrating that the delay required by giving notice would result in defeating the purpose for which the Writ was sought.

We necessarily conclude that so far as the complaint is concerned, it is devoid of allegations of fact sufficient to justify a court in granting an injunction without notice.

The evidence before the trial court on the hearing on the motion appears to lend no support to plaintiff’s argument that under the circumstances existing on the date of the issuance of the injunction, no notice to defendants was required.

It is apparent from the record that notice could have been conveniently served upon two of the defendants, namely, Lords and Phillips, as the Writ of Injunction was served upon them on the day of its issuance. The fact that Rambach could not be served would not excuse failure to give notice to the other two defendants, as the Statute requires notice be given to such defendants as can be conveniently served. It also appears that plaintiff’s counsel had conferred with counsel for Lords and Phillips whose offices were in Springfield, concerning the subject matter of this suit on several occasions prior to the application for the injunction. The last of such conferences appears to have been on January 14, 1955. Notice of the proposed application could certainly have been conveniently given to counsel for a majority of the defendants in a matter of minutes. Photographs introduced in evidence by plaintiff show the entire front of both 526 and 528 East Adams Street including the entrance to the stairway to be intact except for holes in the supporting column and the ceiling of the East side of the entrance. The photographs show no construction being done on any part of the entrance in which plaintiff claims rights or any preparations for construction, such as scaffolding or a protective sidewalk barricade. These photographs disclosing as they do that on the day the injunction was issued the defendants’ contemplated construction plans had not progressed beyond the preliminary or exploratory stage, seem to refute any contention that the closing of the stairway could have been accomplished in the very short time required for giving notice to defendants. It further appears from the uncontradicted testimony of the defendant Phillips that if the injunction had not been issued the stairway entrance would not have been closed for four or five weeks.

Upon consideration of all the evidence in the record, we are convinced that it does not disclose a situation of such urgency as to entitle plaintiff to the extraordinary remedy of having an injunction issued without notice. This conclusion finds support in many cases. In the Skarpinski case, supra, the court in passing upon a situation very similar to that presented by the instant case, had this to say:

“In the last analysis, to test the necessity for the issuance of an injunction without notice, the court must ask whether in the minutes or hours required to procure a defendant’s appearance, defendant could and would do that which would seriously obstruct the court’s power to deal justly and effectively with the issue in dispute.”

The same rule was applied in Crown Bldg. Corp. v. Monroe Amusement Corp., 326 Ill. App. 430; Stenzel v. Yates, 342 Ill. App. 435; Kessie v. Talcott, supra, and in numerous other cases.

Plaintiff earnestly argues that defendants have waived lack of notice of the application for the temporary injunction by filing their motion to dissolve, in which grounds other than that of want of notice were included and by participation in the hearing of such motions to dissolve.

Section 78 of the Practice Act to which we have previously referred, provides that an appeal may be taken from an interlocutory order overruling a motion to dissolve an injunction.

Supreme Court Rule 31 provides that a party proposing to take an appeal from an interlocutory order or decree shall file a motion to vacate such order or decree. In cases involving the issuing of a temporary injunction, compliance with the above rule is had by the filing of a motion to dissolve the injunction. The filing of such motion does not waive the defendant’s right to appeal but on the contrary is a mandatory requirement to the perfecting of an appeal.

Since the adoption of the above rule, the courts have uniformly held that failure to give notice of an application for a temporary injunction is not waived by the filing of a motion to dissolve or by urging other grounds therein. Pearson v. Behrens, 350 Ill. App. 254; Kessie v. Talcott, supra; Brown Music Co. v. City of Sullivan, supra; Stenzel v. Yates, supra.

In view of the holding of our Appellate Courts in the above and other cases, this contention of plaintiff appears to be without merit. Likewise, the contention of plaintiff that defendants are estopped to raise any question of lack of notice because they waited almost three months after the issuance of the injunction before moving to dissolve the same is not supported by any authority which has come to our attention.

A considerable portion of the briefs in this case are devoted to argument on points which arise with respect to plaintiff’s claimed rights under its lease. These arguments must be regarded as going to the merits of the controversy. Since we have reached the conclusion that the order denying defendants’ motion must be reversed because of failure to give notice, consideration of other points argued is not required.

Upon careful consideration of the record in this case we are of the opinion that it does not disclose any sufficient reason for excusing plaintiff from compliance with the Statute which required notice to defendants of its application for the temporary injunction.

The order overruling the defendants’ motion to dissolve the temporary injunction is reversed and the cause is remanded to the Circuit Court of Sangamon County with directions to sustain the defendants’ motion and to dissolve the said injunction.

Reversed and remanded with directions.


author: JUSTICE EOVALDI PRESIDING- JUSTICE DOVE

text:
    Dwayne Cooper and Iva Cooper, Petitioners-Appellants, v. Joan Hinrichs et al., Defendants-Appellees, and Catholic Charities of Diocese of Rockford, an Illinois Corporation, Intervening Defendant-Appellee.
    Gen. No. 10,878.
    Second District.
    December 8, 1955.
    Released for publication December 28, 1955.

      'William S. Freek, of Belvidere, and Pedderson, Menzimer, Carl & Conde, of Rockford, for appellants; L. W. Menzimer, and Dale F. Conde, both of Rockford, of counsel.
    Russell J. Goldman, and Harold Stern, both of Rockford, for appellees; Russell J. Goldman, and Harold Stern, both of Rockford, of counsel; Raphael E. Yalden, of Rockford, for Catholic Charities of Diocese of Rockford.
   JUSTICE EOVALDI

delivered the opinion of the court.

Petitioners sought to adopt the twin daughters of the defendant, Joan Hinrichs, who had permitted them shortly after their births to be declared dependent children by the County Court of Boone County. The court appointed Warren B. Tanner, probation officer of said county, legal guardian of the children and he placed them first in the St. Vincent’s Home for Children at Freeport, Illinois, a Catholic institution, and then in the home of the petitioners, who subsequently filed separate petitions to adopt the two girls in the County Court of Boone County. The two petitions were consolidated for trial and the court permitted the Catholic Charities of the Diocese of Rockford, an Illinois corporation, to intervene as a defendant.

The principal contention of the defendant, Joan Hinrichs, and of the intervening defendant, the Catholic Charities of the Diocese of Rockford, was that the petitioners, who were Protestants, were not proper persons to adopt the children because the mother of the children was of Roman Catholic faith and the children themselves had been baptized into the Catholic faith at the request of the mother when they were twenty-three days old. The father of the children, who was of the Lutheran faith, entered his appearance and consented to the adoption. After a full hearing, the County Court of Boone .County entered an order denying the petitions for adoption and the petitioners have appealed from that order.

Petitioners contend that it was error for the trial court to allow the intervention of the Catholic Charities of the Diocese of Rockford and that it was error for the court to deny the petitions for adoption because of the difference in the religion of the petitioners and in the religion of the children and their mother.

It is established by the evidence that the petitioners are of good moral character and are capable of properly caring for and rearing the children. On the other hand, from the evidence, we find the mother’s earliest attention and interest in the twins directed to their spiritual welfare. As is required in many denominations, the mother had these two little girls baptized on Easter Sunday at St. James Church in Belvidere, where they were born, and thus they became members of the Catholic Church. It is undisputed that the mother was in straightened circumstances at the time she sought assistance long before the children were born. The intervening defendant-appellee, Catholic Charities of the Diocese of Rockford, was asked for assistance in supervising and administering care to the mother at the instance of an employee of the township relief office. The Charities interviewed the mother and sent her to Aurora to a hospital. The township relief office wanted her returned to Belvidere, so she was returned, and gave birth to the twins at St. Joseph’s Hospital in Belvidere.

Some three or four hours before the children were born, one of the attorneys representing petitioners in this cause, who had represented the mother when she obtained a divorce, came to the hospital while the mother was in labor, and had her sign an agreement whereby the twins would be adopted out. After the children were born, the mother refused to go through with the adoption. This was another indication of the mother’s interest in her children. The attorney came back the night of the births and argued with the priest and the mother about her keeping the children and about the payment of the expenses of the births. The mother told the attorney she had changed her mind about adopting the children out. Mr. Tanner, the probation officer, was in court on May 2, 1954, when the mother stated she wanted her children declared dependent and placed in St. Vincent’s Orphanage. At that time she asked Mr. Tanner if the twins were to be left at St. Vincent’s Orphanage and he said “yes.” The Children were taken to the Orphanage at that time. This was another indication on the part of the mother of her continued interest in the spiritual welfare of the children and of her desire that they be reared in the faith in which they had been baptized. On August 4, 1954, the mother went to see the twins at the Orphanage and was told Mr. Tanner had taken them. He did not tell her where the children were. It was necessary for the mother to get a court order to see the children.

The mother was baptized in the Catholic Church in Chicago when she was a baby. She regarded her faith at the time of the trial as Catholic.

We must distinguish the rights of the parties and the authority of the court in an adoption matter such as this, from a chancery action involving mere custody of a child. Custody is one thing, adoption is another, and a clear and convincing case must be made to warrant adoption. Oeth v. Erwin, 6 Ill. App.2d 18, 126 N.E.2d 526; Hill v. Allabaugh, 333 Ill. App. 602 at page 607. Adoption which changes the course of inheritance, deprives the child of the place in which it was placed by nature, and by force of law, thrusts it into another relationship; so that in this respect it differs from mere change of custody which is usually on a temporary basis. Jackson v. Russell, 342 Ill. App. 637; Hill v. Allabaugh, supra. In adoption, it is not the duty of the court to determine if petitioners could best provide for the children. The court must first determine that statutory grounds for adoption exist. Oeth v. Erwin, supra; Jackson v. Russell, supra, at page 639. A parent has the right to his child against all the world unless he has forfeited that right according to law, or the welfare of the child demands that he be deprived of it, Harmon v. Starbody, 219 Ill. App. 603 at page 605, and the rights of a natural parent will not be disturbed unless petitioners make out a case by clear and satisfactory evidence. Keal v. Rhydderck, 317 Ill. 231; Hill v. Allabaugh, supra.

Chapter 4, “Adoption of Children,” Ill. Rev. Stat., 1955, Sec. 4 — 2 [Jones Ill. Stats. Ann. 19.012 (15)], entitled “Adoption by persons of same religious belief” provides as follows: “The court in entering a decree of adoption shall, whenever possible, give custody through adoption to a petitioner or petitioners of the same religious belief as that of the child.” No Illinois case has been cited construing this provision in the Adoption Act. It is the position of the petitioners that the statute is directory only and not mandatory, and that when the situation exists, as in this case, where the mother and the father of the children are of different religious faiths, that the statute should be disregarded. This is a matter within the trial court’s province.

The State of Massachusetts has a similar statute which reads (General Laws (Ter. Ed.) C. 210, Sec. 5 B, inserted by St. 1950 C. 737 Sec. 3) — “In making orders for adoption, the judge when practicable must give custody only to persons of the same religious faith as that of the child. In the event that there is a dispute as to the religion of the said child its religion shall be deemed to be that of its mother. If the court, with due regard for the religion of the child, shall nevertheless grant the petition for adoption of a child proffered by a person or persons of a religious faith or persuasion other than that of the child, the court shall state the facts which impelled it to make such a disposition and such statement shall be made part of the minutes of the proceedings.”

The Massachusetts court, in the case of Ellis v. McCoy, 124 N.E.2d 266, at page 268, stated “Since the enactment of St. 1950 c. 737, Sec. 3 (now G-. L. (Ter. Ed.) c. 210 Sec. 5 B) in passing upon a petition for adoption, a court is ‘bound to give controlling effect to identity of religious faith when practicable.’ Petition of Gally, 329 Mass. 143, 149, 107 N.E.2d 21, 25. The statute was held to be constitutional in Petitions of Goldman, 331 Mass. 647, 121 N.E.2d 843. It is apparent from the findings that the judge allowed the motion to withdraw consent principally because of the difference between the religious faith of the mother and that of the petitioners. In disposing of the motion he must have realized that its allowance would require the dismissal of the petition for adoption. In view of the important bearing of the religious factor on the merits of the petition it cannot be held that the weight which was given to that factor in passing upon the motion was error in law.”

The trial court in dismissing the petitions for adoption gave effect to the statutory provision dealing with the difference in religious faith of the petitioners and of the children who were the subject of the adoption. The evidence presented by the Catholic Charities of the Diocese of Rockford by Father Michael J. Shanahan, Director, was to the effect that he supervised social workers for the organization known as Catholic Charities, which in turn existed for the sole purpose of caring and nurturing and placement of the children; that the Catholic Charities was operated by the Diocese of Rockford, which comprises 11 counties in Northern Illinois, one being Boone County, of which Belvidere is the county seat; that it has a staff of 11 case workers and 5 secretaries; that one of the prime services of Catholic Charities is adoptions. He testified “Mothers are referred to it by members of the family, by doctors, by lawyers and sometimes by neighbors. We interview the mother. ... We confer with the mother while she is being confined to see if she wishes to retain the child or place it for adoption.” The evidence further showed that there were numerous Catholic families whose homes were visited, who were thoroughly investigated and screened, who were seeking children to adopt, who had sufficient funds, were of good reputation, and who would be available to adopt the twins.

The lower court had the advantage of seeing and hearing testimony of the parties and of the witnesses. The trial judge was in a better position than a court of review to weigh the evidence. The determination of the weight to be afforded their testimony were matters for the trial court. The trial court in denying the petitions for adoption on the basis of the statute referred to above was clearly within its discretion and committed no error which would justify a reversal of its decision.

The remaining question in the case is the contention of petitioners that it was error for the trial court to allow the intervention as party defendant of the Catholic Charities of the Diocese of Rockford. As previously pointed out, the Catholic Charities was brought into this family before the twins were born. The Adoption Act provides that the provisions of the Civil Practice Act shall apply to all proceedings under the Act except as otherwise specifically provided. (Ill. Rev. Stats., 1955, Ch. 4, Sec. 7 — 1 [Jones Ill. Stats. Ann. 19.012 (20)].)

The Civil Practice Act expressly provides for the joinder of defendants, for bringing in new parties, and for allowing intervention. (Ill. Rev. Stats., 1955, Ch. 110, Secs. 24, 25, 26 and 26.1 [Jones Ill. Stats. Ann. 104.024, 104.025, 104.026, 104.026(1)].) The only limitation found in the Adoption Act is that contained in said Sec. 7 — 1 that no matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise. (Ill. Rev. Stats., 1955, Ch. 4, Sec. 7 — 1.) The general rule governing intervenors is expressed in Bachellor v. Dockterman, 291 Ill. App. 418, wherein the court says, on page 422:

“In equity, although no one is entitled to be made or become a party to a suit who has not an interest in its object, yet it is the usual and better practice to permit strangers to the litigation who claim an interest in the subject matter, to intervene and assert their titles on their own behalf.”

In Hurley v. Finley, 6 Ill.App.2d 23, 126 N.E.2d 513, a case at law, the court held that intervention was largely a matter within the trial court’s discretion, and that the allowance or disallowance by the trial court of intervention would not be disturbed on appeal, unless clear abuse was shown. To the same effect is Jackson v. Pioletti, 346 Ill. App. 569.

We are of the opinion that the trial court properly allowed said defendant, the Catholic Charities of the Diocese of Rockford, to intervene in this cause as a party defendant. The judgment of the trial court is affirmed.

Judgment affirmed.

PRESIDING- JUSTICE DOVE

specially concurring:

The Adoption Act provides that no matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise. In Bachellor v. Dockterman, 291 Ill. App. 418, at page 4 21, it is said: “A party intervening must show that he has a substantial interest in the subject matter of the suit and of such a character that his rights will be directly affected by the decree entered.” In my opinion, the Catholic Charities of the Diocese of Rockford has no interest in the subject matter of this proceeding and its rights-are not directly affected by the order entered herein. The record discloses that prior to the filing of the instant petitions, these children were declared dependent and a guardian appointed for them who was given their custody. The responsibility of protecting the interests of these children is that of the parents, the guardian and the court. The father of these children was a Lutheran and the trial court, had application been made, in order to be consistent, would have granted a Lutheran Institution pex-mission to intervene and make such assertions as might occur to it as material to this proceeding. The merit of the petition for adoption should be based upon the evidence presented by the petitioners in support thereof and the evidence submitted by the necessary party defendants. The policy considerations relative to this adoption should not have been permitted to be advanced by an intervening defendant of one particular religious faith. While the court erred in permitting the Catholic Charities of the Diocese of Rockford to intervene, that error does not necessitate a reversal of the judgment.