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G.h. Sternberg & Co. v. Cellini

DECEMBER 5, 1973.

G.H. STERNBERG & CO., PLAINTIFF-APPELLEE,

v.

WILLIAM F. CELLINI, DIRECTOR OF THE DEPARTMENT OF TRANSPORTATION, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Madison County; the Hon. ROY STRAWN, Judge, presiding.

MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

This is an interlocutory appeal taken by the defendant William F. Cellini, Secretary of the Department of Transportation of the State of Illinois (now Longhorne Bond), from a decision of the Circuit Court of Madison County. The defendant was enjoined from enforcing contractual rights against the plaintiff, G.H. Sternberg & Co., either under the contract itself or under a performance bond issued by the General Insurance Company of America.

G.H. Sternberg & Co. contracted with the State of Illinois on March 3, 1971, to drive and install pipe culverts under existing highways in St. Clair and Madison Counties. The defendant General Insurance Company of America, hereinafter called the insurer, provided a bond to insure the performance of the contract by the plaintiff.

On July 6, 1972, the plaintiff filed suit alleging impossibility of performance on part of the contract. The plaintiff sought (a) recision of the contract with the State of Illinois; (b) an injunction against the Department of Transportation from enforcing its legal remedies against the insurer on the performance bond; and (c) an injunction against the insurer preventing it from acting under the bond "until such time as full and complete determination of the contractual rights and liabilities of the parties hereto has been made."

The Department of Transportation, hereinafter called the Department or appellant, moved on July 26, 1972, to strike the complaint and dismiss the cause. The Department asserted that (a) the action, though nominally against the Department, was in essence a suit against the State of Illinois thus banned by Illinois Revised Statutes, 1972 Supp., ch. 127, par. 801; (b) the Director of the Department acted in his lawful capacity and was therefore immune from suit; and (c) that the circuit court was without jurisdiction to enter any decree against the defendant Director.

The circuit court denied on April 12, 1972, the Department's motion to strike and dismiss. The Department then filed a motion to reconsider the court's order of April 12, 1972. This motion to reconsider is still pending before the circuit court and there is no appeal from the denial of the Department's motion to strike and dismiss, in which the jurisdictional question is raised. The Department asserted that the circuit court was incorrect in that (a) the Court of Claims has exclusive jurisdiction to hear all claims against the State founded upon any contract entered into with the State and all claims for recoupment made by the State against the plaintiff; (b) that the action was against the State which is protected by sovereign immunity against suit in the circuit court; and (c) that the action was against an officer of the State in his official capacity, who, is therefore, also protected by sovereign immunity.

Plaintiff moved, on May 16, 1973, for leave to add Langhorne Bond, successor to William F. Cellini, as a defendant and sought and obtained without notice to the new party, a temporary injunction restraining the new Director from any action against the plaintiff on the contract.

It is from the issuance of the injunction that the defendant Director appeals under the provisions of Supreme Court Rule 307, Ill. Rev. Stat., ch. 110A, par. 307.

The new Director contends that the court below erred in improperly granting the temporary injunction and that the circuit court is the improper forum for recision of a contract between the plaintiff and the State.

As this appeal is an Interlocutory Appeal, the jurisdiction of this court is determined by the provisions of Supreme Court Rule 307. Rule 307 provides in part:

"(a) Orders Appealable; Time. An appeal may be taken to the Appellate Court from an interlocutory order of court (1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction; * * *."

• 1 Thus we shall consider only that portion of this appeal which pertains to the injunction. (General Electric Co. v. Gellman Manufacturing Co. (1943), 318 Ill. App. 644, 48 N.E.2d 451.) We shall not consider the question of the jurisdiction of the circuit court.

The appellant contends that the injunction issued against Langhome Bond as the Director of the Department of Transportation was on its face incorrectly and improperly granted. The Injunction Act (Ill. Rev. Stat. 1971, ch. 69,) contains two pertinent provisions that are here applicable. In oral argument the appellant conceded that the order here issued is for a temporary injunction as distinguished from a temporary restraining order (see People ex rel. Pollution Control Board v. Lloyd A. Fry Roofing Co. (1972), 4 Ill. App.3d 675, 678, 281 N.E.2d ...


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