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United Mail Order Union v. M. Ward

OPINION FILED MAY 23, 1956.

UNITED MAIL ORDER, WAREHOUSE & RETAIL EMPLOYERS UNION, LOCAL, 20, ET AL., APPELLANTS,

v.

MONTGOMERY WARD & CO., APPELLEE.



APPEAL from the Appellate Court for the First District; — heard in that court on appeal from the Municipal Court of Chicago; the Hon. JOSEPH B. HERMES, Judge, presiding.

MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 24, 1956.

The plaintiffs-appellants, hereinafter referred to as the Union, filed a first class suit in contract in the municipal court of Chicago against the defendant-appellee, hereinafter referred to as Wards, on a $1000 injunction bond theretofore filed by Wards in the superior court of Cook County, to recover alleged damages suffered by the Union. The Union recovered judgment against Wards in the trial court in the sum of $327,000. Wards appealed such decision to the Appellate Court for the First District, which court reversed the judgment of the trial court, and this court thereafter granted leave to appeal, on petition duly filed, after overruling Ward's motion to dismiss such petition for leave to appeal for want of jurisdiction in this court.

On November 9, 1943, Wards filed in the superior court of Cook County its complaint in equity against the Union, praying for a temporary and permanent injunction against continued publication of libelous statements and asking for monetary damages in the amount of $1,000,000 for past libels. The Union in such suit filed a motion to strike Ward's complaint and dismiss the suit, and Wards moved for a preliminary injunction. On June 25, 1945, the superior court of Cook County entered an order denying the Union's motion to dismiss the action, and on the same date granted Ward's motion for a preliminary injunction to be effective upon the court's approval of an injunction bond, and to remain in effect until further order of court.

On June 26, 1945, the injunction bond sued upon in the instant proceeding in the amount of $1000 was filed and approved and, insofar as pertinent to the decision of this case, provided as follows:

"Know all Men by These Presents,

"That we, Montgomery Ward & Co., Incorporated, as principal, and Seaboard Surety Company, as surety, of the County of Cook and State of Illinois, are held and firmly bound unto [the defendants in the injunction suit], in the sum of One Thousand and no/100ths Dollars ($1,000.00) to be paid to the said Defendants, executors, administrators or assigns, for which payment well and truly to be made, we bind ourselves, jointly and severally, and our respective heirs, executors and administrators, firmly by these presents.

"Sealed with our Seals, and dated this 26th day of June, A.D. 1945.

"Whereas, the above bounden Montgomery Ward & Co., Incorporated has filed its bill of complaint in the Superior Court of Cook County and State of Illinois against the above named defendants praying, among other things, for an injunction to restrain the above named defendants from * * * [Here are set forth the terms of the temporary injunction.]

"And whereas said Court has allowed an injunction for that purpose according to the prayer of said bill, upon the said Montgomery Ward & Co., Incorporated giving bond and security as provided by law:

"Now, therefore, the condition of the above obligation is such that if the above bounden Montgomery Ward & Co., Incorporated, and Seabord Surety Company, their executors or administrators, or any of them, shall and do well and truly pay, or cause to be paid to the said Defendants, their executors, administrators, or assigns, all damages which may be sustained by the said defendants, or any one or more of them by reason of the wrongful issuing of such injunction, and also, all such costs and damages as shall be awarded against the said complainant, Montgomery Ward & Co., Incorporated, in case the said injunction shall be dissolved; then, the above obligation to be void; otherwise to be and remain in full force and virtue."

On July 6, 1945, the Union filed a motion to vacate and set aside the order of June 25, 1945, denying their motion to dismiss the action and granting Ward's motion for preliminary injunction. This Union motion was denied, and, upon the Union refusing to plead further and announcing that they would stand on their motion to strike the complaint and dismiss the action, the superior court of Cook County on July 6, 1945, entered a final order as follows:

"FINAL ORDER

"It is hereby ORDERED AND DECREED that the Motion of the above-named defendants to vacate and set aside the Order entered on June 25, 1945 be and the same is hereby denied. And it is further

"ORDERED AND DECREED that the above-named defendants having elected to stand on their Motion to Strike the complaint and to dismiss the suit, therefore Order of June 25, 1945 is made a final order."

The Union appealed from such final order of the superior court of Cook County and the Appellate Court, in an opinion reported in 330 Ill. App. 49, reversed the trial court with directions to dismiss the complaint for want of equity. Thereafter Wards appealed to this court, which affirmed the Appellate Court on March 18, 1948, in an opinion reported in 400 Ill. 38.

On June 1, 1948, the Union filed in the superior court of Cook County a suggestion of damages under section 12 of the Injunction Act, (Ill. Rev. Stat. 1947, chap. 69, par. 12,) claiming damages of $453,750 allegedly incurred by reason of the temporary injunction and Wards' claim for damages. Thereafter Wards filed its motion to strike the suggestion of damages on the grounds, among others, that the temporary injunction had not been dissolved but had merged in the final order and had become functus officio, and that the alleged damages did not arise by reason of the temporary injunction. Thereafter the Union filed a motion to dissolve the temporary injunction, and on June 22, 1948, the superior court granted Wards' motion to strike ...


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