APPEAL from the Circuit Court of Du Page County; the Hon.
WILLIAM V. HOPF, Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the circuit court of Du Page County denying the defendant's motion to vacate a preliminary injunction which enjoined the City of West Chicago from interfering with plaintiff's operation of his business.
Plaintiff's business was located in an M-2 zoning district. The City cited the plaintiff for operating a "junk yard" in violation of the M-2 zoning and on November 22 and November 27, 1974, issued a stop order against him. Plaintiff contends that he is not operating a "junk yard" but is operating a "scrap metal" business which is allowed under the M-2 classification. According to the "Bill in Equity" filed by the plaintiff in this case he has been harassed by the City and threatened with arrest because of the continued operation of his business.
On March 3, 1975, at 9 a.m. plaintiff's attorney phoned the office of the city attorney of West Chicago and informed the city prosecutor the city attorney not being present that he intended to appear before the circuit court at 10 a.m. that morning to seek a "temporary injunction" against the City. A written notice filed with the court at the same time refers to the motion as being one for a temporary injunction. It is more or less agreed by the parties that such telephone notice was given and that the city prosecutor indicated he would not oppose the entry of the order, however, the City claims it was the understanding that the order would be a temporary restraining order. The plaintiff contends no mention was made in his telephone conversation with the prosecuting attorney of a temporary restraining order and he at all times intended to apply for a preliminary injunction, his motion for a "temporary injunction", being a mere technical error in nomenclature.
Previous to 1967 there was no classification of injunctions as to their duration, but in 1967 the injunction statute (Ill. Rev. Stat. 1967, ch. 69) was amended to provide in section 3 for "preliminary injunctions" and in section 3-1 for "temporary restraining orders." Both sections require notice to the adverse party "unless it clearly appears, from specific facts shown by the verified complaint or by affidavit accompanying the same, that immediate and irreparable injury, loss or damage will result to the applicant before notice can be served and a hearing had thereon."
1 Section 3-1 of the amended Act, designated "Temporary Restraining Order," provides, besides the requirement of notice or a showing of irreparable and imminent harm, that such restraining order granted without notice, shall expire by its terms within ten days after entry, unless extended for another ten days by the consent of the adverse party for good cause shown on the order of extension. This section also provides that if a temporary restraining order is issued "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." It provides further that "when the motion comes on for hearing the party who obtained 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." It is clear from this language that it is intended that a temporary restraining order must be of very short duration and if the restraining order is continued it must be by way of a preliminary injunction.
The plaintiff's motion, filed on March 3, 1975, was designated "Temporary Injunction" and the court's order used the same wording. Since the term "temporary injunction" is now obsolete (Paddington Corp. v. Foremost Sales Promotions, Inc., 13 Ill. App.3d 170) this court must determine whether the order issued was a temporary restraining order or a preliminary injunction. If the order was for a temporary restraining order it expired long ago and would have no force or effect at this time. Moreover, the City contends, even if the order is construed as a preliminary injunction, the result is the same, because no proper notice was given, hence the court had no power to issue the order in question and it was a void order.
After careful consideration we are not inclined to accept either argument advanced by the City. As to the order being merely a temporary restraining order, it is obviously not so by its language and the plaintiff contends such was not his intent. The order is not for a certain period of time but is to be effective "during the pendency of this case." More decisive, however, in considering the nature of the order in question is the City's own conduct. The order was issued March 3, 1975. The City claims it was the understanding that the order would be for a temporary restraining order but the City does not appear to have treated it as such. The City waited until March 25, 1975, to file any pleading in connection with this order and at that time did not take the position either that the order was in the form of a temporary restraining order or that it was void for lack of proper notice. Instead, on March 25, it filed an answer and at the same time a countercomplaint. In the answer the City stated that the plaintiff was indeed operating a junk yard, hence in violation of the City's zoning ordinance, therefore, its action in issuing an arrest warrant for the plaintiff and a stop order was a proper exercise of its power to stop an illegal business. It claims this did not constitute harassment. In the countercomplaint the City set forth as an exhibit its zoning ordinance, admitted its issuance of a stop order thereto, cited the plaintiff's disobedience of said order and asked the court to enjoin further violation of that order by the plaintiff.
On April 23, 1975, the plaintiff filed an answer to the countercomplaint and a request for production of certain City records. Thereafter on June 2 (a previous notice and motion apparently having been inadvertently left in the City's file), the City filed a motion to "Set Aside the Temporary Restraining Order Entered on March 3, 1975, for the following reasons": (a) the petition for a restraining order was made without notice; (b) no temporary restraining order can be granted under the laws of the State of Illinois for a period of in excess of ten days, and (c) the injunction issued is illegal and this is an appropriate instance in which fees should be awarded to this petitioner.
It is clear from the wording of this motion that the City did not seek a hearing on the merits and we will consider the court's ruling denying the motion only on the technical grounds raised by the motion as to lack of notice and the expiration of the duration of a temporary restraining order.
2 To begin with, it is not clear that the City had no notice. While the notice may have been inadequate the City was alerted (see Skarpinski v. Veterans of Foreign Wars, 343 Ill. App. 271) and agreed that an order might be entered. The parties disagree, of course, as to whether there was an understanding that the order would be for a temporary restraining order but clearly the City could have appeared and contested the entry of any order at all had it wished to do so. In other words, the City does not contend it was taken completely by surprise and that an order was entered which it had no chance to contest. Rather, the City contends it agreed to a certain form of order, but not to the order that was entered. If the City were to ask for a hearing as to whether the order was void on the ground of fraud or mistake this would be a reasonable ground for reconsideration by the court as to the validity of its order but the City did not do this. Instead, the City filed an answer and a countercomplaint, thus fully entering the case and contesting the case on its merits. While an order of court may be void ab initio for lack of due process, such as notice, a defect in notice can easily be waived and we believe it was waived here by answering on the merits and then filing a countercomplaint. See People ex rel. Akin v. Jones, 333 Ill. 382, 383, where the court said:
"The objection to the notice was waived by the other two objections, which went to the merits. Where there is an appearance and defense is made to the merits, it makes no difference whether there was a defective notice or no notice at all."
To the same effect are People v. Estep, 6 Ill.2d 127, and Greer v. Ludwick, 100 Ill. App.2d 27, 40, where the court reiterated the familiar doctrine of the Illinois cases on this point:
"Any action taken by a litigant which recognizes the case as being in court will amount to a general appearance unless such action was solely to object to the jurisdiction. Widicus v. Southwestern ...