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James C. Wilborn & Sons, Inc. v. Heniff

MARCH 25, 1965.

JAMES C. WILBORN & SONS, INC., A CORPORATION, PLAINTIFF-APPELLANT,

v.

WILLIAM VINCENT HENIFF, ET AL., AND BRANDEX TILT-SASH, INC., A CORPORATION, DEFENDANTS-APPELLEES.



Interlocutory appeal from the Circuit Court of Cook County; the Hon. WALKER J. BUTLER, Judge, presiding. Order affirmed.

MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.

Rehearing denied April 15, 1965.

This is an appeal from an order quashing a writ of injunction previously issued. The principal question is whether an O.K. of an order, with the initials of the respective attorneys affixed, constitutes a consent order and may not thereafter be contested.

On April 21, 1964, the plaintiff filed a complaint setting forth that it had an exclusive manufacturing and assembling license from Tilt-Sash Corporation to make, use and sell windows of a type described, within certain territory in Illinois and Indiana; that the defendant Heniff, while an employee of the plaintiff company, obtained its customer list and other items and then, conspiring with certain other defendants who were also employees of the plaintiff, left the plaintiff company and undertook to sell units practically identical with those sold by plaintiff, using sales items imitating those used by the plaintiff and engaging in other activities designed to deceive prospective customers. The complaint prayed for a mandatory writ of injunction restraining the alleged unfair practices.

The matter was heard on April 24, 1964, and an order was entered as follows:

"This matter coming on to be heard on notice on a motion for a temporary injunction herein and the Court having read the Bill of Complaint, sworn to, and having heard argument of counsel and being fully advised in the premises,

"It is Hereby Ordered, Adjudged and Decreed that a Writ of Injunction issue herein upon posting of a $5,000.00 surety bond.

O.K. O.K. R.P.S. S.J.S."

Pursuant to that order an injunction writ was issued enjoining the defendants from

"utilizing and trading on manufacturing know how, customers' lists, catalog prices and other confidential information acquired by them . . . and . . . from making, selling and distributing window units of any kind and character of the kind now being sold, manufactured and distributed by the plaintiff. . . ."

and from using the name "Tilt-Sash" in literature and from engaging in other activities described at considerable length. None of the acts so enjoined were set forth in the injunction order nor did the order recite that the writ should follow the prayer of the complaint. The name of the judge appears on the writ in what probably is his handwriting, but it was deleted and the writ was then signed by the clerk of the court and was duly served on the defendants.

A bond in the sum of $5,000 was ordered by the court, but no time was fixed for the posting thereof. A motion to vacate the temporary injunction was filed on April 30, 1964. On the same date an answer was filed, which is not set forth in the abstract. It is lengthy and denies the material allegations of the complaint. It specifically charges that the Tilt-Sash Company (from which plaintiff derived its license to sell the product) did not have the right to grant an exclusive sub-license to the plaintiff. Also on the same day the court denied the motion of defendants to dissolve the temporary injunction and referred the cause to a master in chancery, with directions that the report of the master be filed within sixty days. This order bears the same notation as the order hereinbefore mentioned, to-wit:

"O.K. O.K. R.P.S. S.J.S."

On May 11, 1964, the defendants having filed a motion for change of venue, the cause was reassigned to Judge Walker Butler. On May 19, 1964, defendants again moved to strike and dismiss the complaint. On June 5, 1964, an amended complaint was filed. On June 9, 1964, an order was entered which recited that the matter was being heard upon the motion of defendants to strike and dismiss the complaint; that the court having read the pleadings and heard the argument, denied the motion to dismiss upon condition that the plaintiff immediately file amendments and supplements to its complaint in accordance with the direction of the court and that the injunction be ...


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