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Weingart v. Weingart

OCTOBER 14, 1959.

FLORENCE WEINGART, APPELLEE,

v.

BETTY WEINGART, ET AL., ON APPEAL OF BETTY WEINGART, ROSE WEINGART, MARION WEINGART AND LOUIS WEINGART, APPELLANTS.



Appeal from the Superior Court of Cook county; the Hon. JOHN A. SBARBARO, Judge, presiding. Affirmed.

PRESIDING JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.

This is an interlocutory appeal from an order entered on October 10, 1958, granting a temporary injunction without bond restraining defendants-appellants from:

"(a) Conveying, transferring, mortgaging, hypothecating, disposing or otherwise `intermeddling' with a parcel of real estate known as 2814 Farragut Avenue, Chicago, Illinois;

"(b) Transferring, disposing or otherwise `intermeddling' with the proceeds of the sale of the real estate known as 2605 West Division Street, Chicago, Illinois;

"(c) Disposing, transferring or otherwise `intermeddling' with the proceeds of the sale of the assets of Weingart Book Store Inc., a corporation, and the operation of its business;

"(d) Disposing, transferring, conveying or otherwise `intermeddling' with the assets of the Estates of Hannah Weingart and Ben Weingart, deceased;

"(e) Transferring, assigning, hypothecating, disposing or otherwise `intermeddling' with any United States Savings Bonds in the name of the plaintiff or in some other name or names but purchased with the proceeds of the operation and sale of the Weingart Book Store, Inc., and the rents, issues, profits and avails from the real estate herein involved;

"(f) Transferring and assigning property belonging to the plaintiff or in which the plaintiff has an interest."

Defendants-appellants are three sisters and a brother of plaintiff-appellee. As indicated by the order itself, plaintiff is the joint owner with some of the defendants of a parcel of real estate known as 2814 Farragut Avenue, Chicago, Illinois, which is occupied by plaintiff and some defendants as a home, and was the joint owner with some of defendants of the premises at 2605 West Division Street, Chicago, Illinois, which has been sold. Both of these pieces of real estate were held in trust, and the trustee is empowered to act in regard to them on the direction of less than all of the beneficiaries. Plaintiff also has an interest in the proceeds of the sale of the Weingart Book Store, Inc., a corporation. She has already received some of the proceeds. Plaintiff and defendants are heirs in the Estates of Hanna Weingart and Ben Weingart, both deceased. It is alleged that defendants, or some of them, have in their custody United States Savings Bonds in the name of the plaintiff, or some other names, which rightfully belong to plaintiff.

The principal cause of action here is a suit for an accounting involving the operation of the premises at 2814 Farragut Avenue, the operation of the premises at 2605 West Division Street, and the proceeds of the sale of the real estate, the operation of the business of the Weingart Book Store, Inc., and the sale of its business, the alleged interest of plaintiff in the Estates of Hannah Weingart and Ben Weingart, both deceased, and the alleged interest of plaintiff in certain United States Savings Bonds.

Plaintiff argues that this cause of action is a proper one for equitable jurisdiction, that the injunction is for maintaining the status quo during the proceeding. This injunction was issued without the requirement of bond, but it was issued pursuant to notice served upon all of the parties, and after answer and a hearing in open court. The question here is whether the issuance of the injunction was an abuse of discretion by the trial court.

[1-5] The rule in regard to the power of the reviewing court to pass upon the discretion of the chancellor who issued a temporary injunction is well set out in Aurora v. Warner Bros. Pictures Dist. Corp., 16 Ill. App.2d 273, at 285 as follows:

"The law is well settled in Illinois that the trial court is vested with large discretionary power in granting an order for a temporary injunction and unless the reviewing court finds that the discretion has been abused the order will not be set aside."

The effect of Section 78 of the Civil Practice Act in regard to such appeals is set forth in O'Brien v. Matual, 14 Ill. App.2d 173, at 186, as follows:

"The primary purpose of Section 78 of the Civil Practice Act (Ch. 110, Ill. Rev. Stats. 1955, Par. 78) relating to appeals to the Appellate Court from interlocutory orders concerning injunctions is to permit a review of the exercise of the discretion lodged in the chancellor in order to determine whether the interlocutory order probably was necessary to maintain the status quo and preserve the equitable rights of the parties; and unless the Appellate Court finds that the chancellor's discretion has been abused the interlocutory order will not be reversed or set aside; McDougall Co. v. Woods (1928) 247 Ill. App. 170; Bernard Brothers, Inc. v. Deibler (1945) 326 ...


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