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Chrysler Credit Corp. v. M.c.r. Leasing Co.

OCTOBER 9, 1969.

CHRYSLER CREDIT CORPORATION, PLAINTIFF-APPELLEE,

v.

M.C.R. LEASING CO. AND AURORA CHRYSLER-PLYMOUTH, INC., DEFENDANTS-APPELLANTS, AND NORTHERN ILLINOIS CORPORATION, INTERVENOR-APPELLEE.



Appeal from the Circuit Court of DeKalb County, Sixteenth Judicial Circuit; the Hon. CARL SWANSON and the Hon. JOHN S. PETERSEN, Judges, presiding. Affirmed in part and reversed in part and remanded.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

This is an interlocutory appeal by the defendants, M.C.R. Leasing Co., and Aurora Chrysler-Plymouth, Inc., from an order granting a temporary injunction in a replevin action brought by the plaintiff, Chrysler Credit Corporation.

The plaintiff filed a complaint for replevin wherein it alleged that it was entitled to possession of sixty-four automobiles wrongfully obtained by the defendants. Subsequently, it filed a petition alleging that the intervenor, Northern Illinois Corporation, also claimed the right to possession of many of the same automobiles; that it was advised that two other financial institutions likewise claimed a right to possession of some of the same automobiles, all by virtue of security agreements; that a complete examination of the defendant's records would be necessary to determine the relative priorities of the respective claimants; that it had been informed that some of the defendants' books and records had been removed by the defendants; that it feared that such books and records might be either altered or destroyed; that an injunction should issue restraining the defendants from destroying, altering or disposing of their books; and that the defendants should be ordered to deliver such books and records to the court to be impounded until further order.

The petition was served upon the defendants, together with a notice that the matter would be heard before Judge John S. Petersen on a date shortly after the service. The defendants immediately prepared and presented to the court, a motion for change of venue, supported by affidavit, asserting that they could not get a fair trial before Judge Petersen or any Aurora area judge.

Judge Petersen was advised of both motions, and he entered an order granting the plaintiff's petition for temporary injunction and at the end of the order added the words, "the case is assigned to Judge Carl A. Swanson for trial."

Thereupon, the defendants moved to vacate the order of Judge Petersen on the grounds that after the motion for change of venue was made in due time and in proper form, the court had no power to render any further order, except such as may be made in connection with the one which allowed the change of venue. Judge Swanson, over a span of several hearings, heard the parties and entered a mandatory injunction order directing that the books and records be deposited at a given storage place under the control of the sheriff, subject to further order of the court; and that the plaintiff and intervenor pay the expenses thereof. The order further stated that to the extent the prior order of Judge Petersen was in conflict with the order issued by his court, said prior order was modified.

The defendants first argue that the earlier order of Judge Petersen was void, as it was made after a proper motion for change of venue, pursuant to section 1 of the Venue Act (Ill Rev Stats 1967, c 146, par 1). Presumably, the plaintiff does not disagree with this contention, as it neither addressed itself to, nor responded to the defendants' argument.

We believe that the defendants' position is correct. It has been repeated, too often to belabor, that where a petition for change of venue, on the ground of prejudice of a judge, is presented in due time and in proper form, the court is without power to render any further order except in connection with the order allowing the change of venue. Hinduliak v. Inn of Four Lakes, Inc., 98 Ill. App.2d 42, 48, 240 N.E.2d 532 (1968); Gates v. Gates, 38 Ill. App.2d 446, 448, 187 N.E.2d 460 (1963); Agar Packing & Provision Corp. v. United Packinghouse Workers of America, 311 Ill. App. 502, 505, 508, 36 N.E.2d 750 (1944); Simpson v. Simpson, 165 Ill. App. 515, 516 (1911). The order of Judge Petersen granting the temporary injunction after presentation of the motion for change of venue — which the plaintiff does not challenge as being bad in either form or substance — was improper and void.

However, after the entry of Judge Petersen's order granting the temporary injunction, the question of whether a temporary injunction should issue in reference to the protection of the books and records, was heard at length by Judge Swanson, the transferee judge. Obviously, he was impressed by the charge that there allegedly was double and triple financing by the defendants; and that there was a need for complete inspection of certain of the defendants' books in order to determine who, among the plaintiff and intervenors, would have the right to the various automobiles and to allay the purported fear that otherwise certain of these records would not be available.

At the time the order appealed from was entered, the defendant dealership had closed its doors. The only business activity was work by an accountant to take care of certain payroll matters, clarify certain customer problems, and determine receivables. The court's order provided that the books and records be impounded — not produced — at the address of the accountant, where some of the records then were, or at such other place as the parties might agree. The books and records to be impounded covered only a two-year period. Only the defendants' agents were to have access to the documents. The plaintiff and intervenor were to pay all costs in connection with the storage and maintenance of the records. It appears from court's statements that the records were to be impounded only for so long as necessary to enable the plaintiff and intervenor to obtain copies of documents ordered by the court to be produced.

In view of the circumstances of this case, we find that it is readily distinguishable from People ex rel. General Motors Corp. v. Bua, 37 Ill.2d 180, 226 N.E.2d 6 (1967), and that the order entered by Judge Swanson served a useful purpose and was not unduly broad.

The order reflects the concern which he expressed at the hearings and obviously was the result of these hearings, and not of the prior order of Judge Petersen. It is true that the second order did not vacate the earlier one, but referred to the earlier order as being modified to the extent that it was in conflict with the latter one. In this regard the second order was erroneous. It should have vacated the earlier, void order. It does not follow, however, that the second order — that of Judge Swanson — was void, as argued by the defendants. It was valid in all respects other than it should have provided that the prior order was vacated thereby, rather than that to the extent that the prior order conflicted with the latter order, it was modified thereby.

The defendants also contend that the injunction order was improper in that a replevin action is an action at law and the equitable relief of injunction may not be granted in such an action, and that only the relief specifically provided for by the replevin statute may be awarded. We do not agree with the contention that injunctive relief is improper in a replevin action.

Concededly, replevin is governed by the statute and the remedy provided and procedure to be followed is controlled and limited by the Replevin Act to the extent it is expressive of those matters. Thus, a local rule of court — which purported to provide that if the property to which possession is sought is concealed so that it cannot be found upon demand by the officer, the defendant must turn it over or be deemed in contempt of court — was held to be void in that it compelled the defendant to do something ...


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