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Brooks v. La Salle Nat. Bank

MAY 3, 1973.




APPEAL from the Circuit Court of Cook County; the Hon. WALTER P. DAHL, Judge, presiding.


Defendants pursue this interlocutory appeal from an injunctional order of the circuit court of Cook County, chancery division, commanding them to restore plaintiff to possession of Apartment 500, 5200 South Blackstone Avenue, Chicago, and his personal property located therein. Defendants obtained an order of the court staying the force and effect of the injunctional order pending this appeal.

Defendants raise four issues for our consideration: (1) Whether the complaint is sufficient on its face to be a basis for the granting of a temporary mandatory injunction; (2) Whether the trial court erred in granting a temporary mandatory injunction without hearing testimony where a verified answer and counterclaim were filed; (3) Whether the trial court erred in issuing a temporary mandatory injunction without bond; and (4) Whether the temporary mandatory injunction is enforceable.

We affirm.

The chancellor ordered the temporary injunction on the basis of the allegations of plaintiff's verified complaint and defendants' verified answer. The allegations which arise from the pleadings are as follows: Plaintiff, Stanton Brooks, entered into a one-year lease as lessee with lessor, Blackwood Apartment Hotel, which was owned by defendant Green, managed by defendant Kreps, and held in a land trust with defendant bank as trustee. The lease on Apartment 500 ran from May 1, 1971, to April 30, 1972, at a monthly rental of $175. A security deposit of $175 was paid. On February 25, 1972, plaintiff attempted to enter his apartment at the Blackwood Apartment Hotel, but the door was "plugged" in such a way that his key would not open it. At this time plaintiff had $2855 of personal property located in the apartment. Plaintiff's demand for admittance to the premises was refused. Plaintiff's attorney telephoned defendant Kreps in order to demand a return of the premises and the personal property, but she refused. Plaintiff's attorney also sent a letter to Kreps making the same demands, but at the time plaintiff filed his complaint on March 10, 1972, he had not been allowed to re-enter the apartment nor had his personal property been returned.

In their answer, defendants allege that plaintiff was in arrears for his January, 1972, rent in the amount of $100.18 and for his February, 1972, rent in the amount of $175. Plaintiff presented defendants a check for $100.18 as payment for the January arrearages, but such check was returned for insufficient funds. Under the terms of the lease, the lessor provided a furnished apartment, linens, maid service, and telephone switchboard service. Clause 13 of the lease provided, in pertinent part:

"IT IS EXPRESSLY AGREED, Between the parties hereto, that if default be made in the payment above reserved or any part thereof, * * * it shall be lawful * * * to declare said term ended, to re-enter said demised premises or any part thereof and the said party of the second part (lessee), or any other person or persons occupying the same to expel, remove and put out, using such force as he may deem necessary in so doing, and the said premises again to repossess and enjoy as in his first estate * * *."

Defendant Kreps verbally notified the plaintiff that the check for $100.18 had been twice returned unpaid and that he owed a total of $278.28, which included overdue rent and telephone charges. She warned him that unless she received a certified check for the total amount in two days, she would terminate his tenancy. The answer further averred that the plaintiff became abusive, threatened to damage or destroy the furnishings in the apartment, and refused to pay the past-due rent. Believing that plaintiff would execute his threats, Kreps changed the locks on the door and obtained possession of the apartment. Kreps offered to permit plaintiff to remove his personal property from the apartment under certain conditions, but plaintiff refused.

In their answer, defendants relied on Clause 13 of the lease to justify their obtaining possession of the apartment without resorting to legal proceedings. They also asserted an innkeeper's lien on the plaintiff's personal property pursuant to Ill. Rev. Stat. 1971, ch. 82, par. 57. They objected to the plaintiff's seeking equitable relief, because they claim that he did not comply with the equitable maxims of "clean hands" and "a plaintiff who seeks relief from a court of equity, must himself offer to do equity."

Defendants counterclaimed for $453.28, which represented the unpaid rent for three months and telephone charges. In addition to asserting an innkeeper's lien on plaintiff's personal property, defendant claimed a right to distrain the personal property for the past-due rental pursuant to Ill. Rev. Stat. 1971, ch. 80, par. 16.

Alleging that he had no adequate remedy at law, plaintiff stated in his complaint that (1) he had none of his personal belongings and effects necessary to manage his everyday affairs, (2) that he had no place to live, and (3) that he had a great fear that his possessions would not be secure.

On the basis of the complaint, answer, and counterclaim, the chancellor granted the plaintiff's prayer for temporary relief and issued an order without bond, commanding the defendants "to DESIST AND REFRAIN from selling, giving, transferring, or delivering possession of plaintiff's personal property in any way and to DESIST AND REFRAIN from denying the plaintiff access to Apartment 500, 5200 S. Blackstone, Chicago, Ill., and DESIST AND REFRAIN from refusing to deliver into plaintiff's possession said personal property in the possession of defendants."

Defendants' first contention is that plaintiff's complaint is insufficient to authorize the granting of temporary injunctive relief. Defendants direct our attention to Schlicksup Drug Co. v. Schlicksup (1970), 129 Ill. App.2d 181, 186, 262 N.E.2d 713, 715, where the court stated:

"As a prerequisite to the issuance of the preliminary injunction, the plaintiff was required to establish the probability of the ultimate success on the merits of the case as well as the immediate need for the injunction to preserve the status ...

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