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Bohn Aluminum & Brass Co. v. Barker

FEBRUARY 1, 1972.




APPEAL from the Circuit Court of Cass County; the Hon. RICHARD MILLS, Judge, presiding.


On May 5, 1970, the plaintiff-corporation filed a complaint in the circuit court of Cass County for a temporary injunction, a temporary restraining order and a permanent injunction. On that date, the circuit court allowed the motion for temporary restraining order without notice and without bond and thereafter denied a motion by the defendant to dissolve it. This appeal is from the action of the court in issuing the temporary restraining order and in denying the motion for its dissolution. The order expired by its own terms on May 19. Notice of appeal was filed May 28 when the order was functus officio.

The plaintiff operates a manufacturing plant in Cass County at Beardstown and the defendant is the president of the labor union which represents the employees of that plant. In March 1970, the union members went on strike to obtain a new contract. The strike was a result of a dispute over the terms and conditions of employment. The underlying dispute between the parties has since been settled. Our initial inquiry must be whether or not the order entered by the trial court is an appealable order under any provision of our statutes or rules. We conclude that it is not.

This appeal is taken under Supreme Court Rule 307, Ill. Rev. Stat. 1969, Ch. 110A, par. 307, which relates to interlocutory appeals as of right. The applicable provision of that section reads as follows: "(1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction; * * *". No attempt was made to appeal under Rule 308 which provides for interlocutory appeals by permission. Rule 308 was not followed, is not before us and accordingly nothing herein said relates to that rule.

The term "temporary restraining order" and the statutory provision governing it appeared in our injunction statute for the first time in 1967 by the addition of par. 3-1 to the statute. Ill. Rev. Stat. 1967, ch. 69, par. 1, et seq. Since that time we have had three types of injunctive orders created by statute with rules relating to each, that is, a permanent injunction, a temporary injunction, and a temporary restraining order. Section one of the cited statute grants circuit courts the power to issue writs of injunction. Section three of the statute relates to "preliminary injunctions". Section three-one of the statute relates to temporary restraining orders. The term "restraining order" entered into par. 9 of the same statute in 1967. It was not included in par. 12 of the statute which requires a dissolution of an "injunction" before damages are obtainable under that statute for the wrongful issuance of the injunction. (House of Vision, Inc. v. Hiyane, 42 Ill.2d 45, 245 N.E.2d 468.) It is likewise noted that a temporary restraining order is not included in the language of Rule 307 above quoted. It strikes us that plain language of differentiation between these three types of injunction orders was used intentionally, deliberately and purposefully and no fancy interpretation is required to reach the legislative intention.

• 1 It is, of course, true that the words "restrain, refrain, stay and enjoin" may under certain circumstances be used interchangeably or synonymously. (Wiseman v. Law Research Services, Inc., 270 N.E.2d 77; Valente v. Maida, 24 Ill.2d 144, 164 N.E.2d 538.) It does not follow, however, that because they may be synonymous that they are or can always be used synonymously. It does not require a careful reading of those cases to clearly indicate that the factual situation there discussed was utterly foreign to a "temporary restraining order". Both orders were patently not brought pursuant to par. 3-1 of our Injunction Act. Maida was already decided before this section was born. Wiseman did not purport to be under par. 3-1. Both sought to enjoin the prosecution of a particular case until the determination of previous litigation. No other further or additional action was requested or required. If the injunction was granted, its purpose was accomplished. This is far removed from the temporary restraining order which we consider and which requires further and additional action to have any substantive effect and, as pointed out in Valente, when we look to the substance rather than the form of the action, we find that the substance in Valente and Wiseman was an injunction. The substance of the order which we consider is a temporary restraining order that requires further action on the part of the beneficiary before any satisfactory result on the merits is reached. We think that an examination of the language in our Act will clearly demonstrate just this.

• 2 A temporary restraining order under par. 3-1 "* * * shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period". This same section also provides: "In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtains the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the court shall dissolve the temporary restraining order * * *". Thus, where there is a temporary restraining order, it is but a preliminary to the hearing on a temporary or preliminary injunction and unless the one who obtains the temporary restraining order proceeds with the application for preliminary injunction, the court shall dissolve the temporary restraining order. The temporary restraining order may likewise be dissolved by the court after hearing on two days notice to the party who obtained it without notice. A clear reading of these provisions indicates that a temporary restraining order without notice is nothing more than a preliminary order of court and it is the temporary or permanent injunction which is appealable under Rule 307. In concluding that we do not deal with an appealable order in this case, we are aided by the following statement in AmJur 2d, Vol. 42, p. 1153: "While some statutes permit an appeal from an order granting or denying a temporary injunction, a temporary restraining order is to be distinguished from a temporary injunction, and the statute does not furnish the basis for an appeal from an order relating to a temporary restraining order". Also, in 19 ALR3d, p. 409, the following is stated: "An order granting or continuing a temporary restraining order is, on its face, interlocutory in nature, since there remains pending a determination of the applicant's right to temporary or permanent injunctive relief, and the majority of cases in which the point has been discussed support or recognize the rule that ordinarily no appeal lies from an order granting, continuing, or refusing to dissolve a temporary restraining order or its equivalent. Such orders, without more, do not satisfy statutes or rules defining finality for the purpose of appeal; and a number of cases have held that a statutory provision or rule permitting an appeal from an interlocutory order relating to a temporary or permanent injunction has no application to orders dealing with temporary restraining orders".

The very fundamental of appellate review is the desire to resolve a case on the merits. Appeals therefore from interlocutory orders are exceptions to that rule. The statutory addition of the temporary restraining order speaks loudly that its issuance should be unusual, should be for the purpose of maintaining the status quo and places the burden on the one obtaining the order to proceed as expeditiously as possible with a hearing on the merits for a temporary injunction or a permanent injunction. The order entered died by its own specific terms. The statute provides for its early demise. Its short statutory life suggests that it was not intended to be appealable. The time limits set out as a practical matter preclude appeal before demise. Since it is not appealable, then the issuance or the denial of such temporary restraining order without notice and without bond never reaches the merits of a controversy and if injury and damage results from the improvident or improper entry of such an order there is nothing in our statute at the moment which precludes proper relief by way of a suit for damages. In the instant case, the trial court denied a motion to dissolve the temporary restraining order. The determination of whether that restraining order was a valid order remains to be determined in a different suit on a different day and in a different forum after a hearing on the merits.

Accordingly, this appeal must be and it is hereby dismissed.

Appeal dismissed,

TRAPP, P.J., concurs.

Mr. JUSTICE CRAVEN dissenting:

I do not agree that the issuance of a temporary restraining order by the circuit court and the subsequent refusal to dissolve it is immune from review on appeal. As I see it, such action is reviewable. In County of Cook v. Ogilvie, Ill.2d, N.E.2d, Docket No. 44779, the Illinois Supreme Court review and affirmed the issuance of a temporary restraining order. Although the question of reviewability was not specifically discussed, there was review.

I agree with the majority that the issue here is not moot. In a consideration of this case we should deal with it on the basis of the merits and within the purview of the several statutory provisions ...

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