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Streamwood Home Builders, Inc. v. Brolin

MARCH 14, 1960.

STREAMWOOD HOME BUILDERS, INC., PLAINTIFF-APPELLEE,

v.

PAULINE BROLIN, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook county; the Hon. DANIEL A. ROBERTS, Judge, presiding. Affirmed.

PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

Rehearing denied April 7, 1960.

This is an interlocutory appeal by the defendants from an order denying their motion to dissolve a temporary injunction. The single question to be determined is the propriety of issuing the injunction without notice.

The motion for the restraining order was accompanied by the complaint and three supporting affidavits. The complaint stated that the plaintiff was a subdivider and a builder of homes in the Village of Streamwood, Cook County. It charged that the defendants, all residents of the village, had entered into a conspiracy in August 1959, to coerce the plaintiff to build schools in the village, which the plaintiff was under no legal obligation to do; that on two Sundays, September 13th and 20th, 1959, the defendants, in furtherance of the conspiracy, had prevented the sale of the homes by parading around the sales area, by invading the plaintiff's office and model homes, and by interrupting conversations between salesmen and prospective purchasers. It was further alleged that the defendants had threatened to repeat the demonstrations on Saturday and Sunday, September 26th and 27th.

One affidavit was by the plaintiff's supervisor of sales. He stated he had received information Wednesday evening, September 23rd, that the defendants would cause similar disturbances the following weekend. He also swore that $18,000 had been spent in advertising the homes for sale on the same weekend. Another affidavit was by the general counsel for the plaintiff. He said that he had been retained to prosecute the complaint on September 24th; that he and an associate worked on the pleadings until 10:30 Thursday night and, with the aid of two more associates, continued the work throughout the next day until 3:30 p.m.

The suit was filed thereafter, late in the afternoon of Friday, September 25, 1959, and was assigned to the chancellor. He enjoined the defendants from instigating or participating in activities which would interfere with the plaintiff's sales efforts. His order further stated: ". . . this injunction should issue without notice it appearing from the record that in view of the imminence of the threat that there was insufficient time to give notice."

The latter part of the order spotlights the problem confronting us. The facts alleged in the pleadings made out an excellent prima facie case for an injunction, and for the issuance of an injunction prior to the threatened repetition of the defendants' demonstration, but no facts were pleaded which showed that the plaintiff would be prejudiced by informing the defendants of the motion; nothing was said about the waiver of notice, and there was no prayer for such relief. Under these circumstances should notice have been waived? Should notice have been given during the preparation of the case in anticipation of the subsequent shortage of time?

The defendants maintain that notice should and could have been given because the plaintiff, according to its own affidavits, knew for at least two days that an injunction was to be requested; that its sole objective was to obtain the writ before Saturday, and that it therefore knew the application would be made sometime on Friday. They point out that the complaint shows that the plaintiff has an office, staffed with employees, in the village where the defendants reside, and that a telephone call to this office would have resulted in the personnel alerting at least some of the defendants. And they add that, under our decisions, all that was required was some kind of notice, either oral or written.

The plaintiff explains that it had no intention of seeking an injunction without notice and for that reason the subject was not mentioned in its pleadings, but when the pleadings were completed, there remained only a few minutes before the end of the afternoon on the last day of court before the impending act sought to be enjoined. It takes the position that notice of the time and place of its application could not be given until the case was filed and assigned to a particular judge, and that when this was done it was too late to inform the defendants who lived at the extreme edge of the county, many miles from the court house.

An injunction is an extraordinary remedy; one without notice is considered most drastic and should be granted only under extreme circumstances. Sprague v. Monarch Book Co., 105 Ill. App. 530; Brin v. Craig, 135 Ill. App. 301; Crown Bldg. Corp. v. Monroe Amusement Corp., 326 Ill. App. 430. The circumstances countenanced by the courts have been in very restricted areas, such as where the facts of the case, or the history of the parties, disclosed that the giving of notice would result in accelerating the very act sought to be enjoined, or where the act to be enjoined was either taking place or would be undertaken or completed in the time required for notice. A. Daigger & Co. v. Kraft, 281 Ill. App. 548; Mitchell v. Mitchell, 10 Ill. App.2d 437; Atkinson Trust & Sav. Bank v. DeRoo, 332 Ill. App. 251; 21 I.L.P., Injunctions, sec. 123, et seq.

Notice to an adversary is elemental in our system of justice. Our courts of review have insisted upon chancery courts scrupulously observing the fundamental right of a party to be informed of the injunction proposed against him so that he may be present, if he wishes, to defend himself. Skarpinski v. Veterans of Foreign Wars of United States, 343 Ill. App. 271; Goldberg v. Laughlin, 137 Ill. App. 283. It has been held some notice is better than none, and if a complainant is unable to comply with the court rules in reference to giving notice and serving copies of the pertinent pleadings (Uniform Rules of the Circuit Courts of Illinois, sec. 302.1, ch. 110, Ill. Rev. Stat. 1959) he can show his good faith by giving some sort of notice to the opposite party. In Skarpinski v. Veterans of Foreign Wars, supra, an injunction without notice was issued the day after the complaint was filed. This court stated that there was no genuine emergency shown by the complaint and added:

"It appears from the record that plaintiff knew who was defendant's attorney and telephone communication with him should have been easy and practicable. Even a telephone call from the courtroom to defendant or counsel can produce an appearance within a few minutes. While we do not suggest this as a substitute for formal notice, it is at least a desirable alternative to no notice at all."

We must distinguish between a case, such as Skarpinski, where the defendant or his attorney is readily accessible, and the instant case where the defendants had no centrally located address or no known attorney. A late notice in this case would have been futile; it is reasonable to suppose that none of the defendants could have responded in the brief interval between the completion of the necessary documents and the adjournment of court for the weekend. The only satisfactory notice, under the prevailing circumstances, would have been one served several hours before the filing of the suit. The defendants say this should have been done, and this is the heart of their argument. It seems to us, if this argument were carried to its logical conclusion, a plaintiff upon arriving at his decision to seek an injunction, or his attorney upon being consulted for this purpose, would have to inform the defendant that an injunction was contemplated, and that on some future day, at some time as yet undetermined, they would appear before some chancellor in either the Circuit or Superior Court. They would have to do this to safeguard themselves in the event that later there was inadequate time for a better notice. What other defense would they have to a charge that they could have given an earlier notice if they had sincerely tried?

No case has been called to our attention where it has been suggested that a notice prior to instituting litigation is either required or is advisable. A somewhat analogous contention was rejected in O'Beirne v. City of Elgin, 187 Ill. App. 581, where an injunction was granted without notice, under a statute substantially the same as the present one, restraining the city from considering bids and making contracts for a municipal lighting plant. The bids were to be opened at 2 p.m. on the day the injunction was issued. The bonds for the plant had been approved by ...


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