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Rock Island Bank v. Paul

OPINION FILED MAY 3, 1977.

THE ROCK ISLAND BANK, PLAINTIFF-APPELLEE,

v.

MARGUERITE PAUL, DEFENDANT-APPELLANT. — (WILLARD S. PAUL ET AL., DEFENDANTS.)



APPEAL from the Circuit Court of Rock Island County; the Hon. DAVID DeDONCKER, Judge, presiding.

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

Defendant Marguerite Paul appeals from an order of the Circuit Court of Rock Island County denying defendant Marguerite Paul's motion to dissolve a preliminary injunction directing her and defendant First National Bank of Moline (hereinafter called Moline bank) not to withdraw or transfer certain funds on deposit in defendant Moline bank in the name of Marguerite Paul. On appeal in this court, under Supreme Court Rule 307(a), defendant Marguerite Paul argues that the circuit court erred in refusing to dissolve the preliminary injunction because (1) the injunction was not shown to be necessary to prevent an irreparable injury or that there was no adequate remedy at law as to the plaintiff Rock Island Bank; (2) the injunction does not preserve the status quo of the parties pending resolution of the cause on the merits; and (3) the injunction violates the due process clause of the Fourteenth Amendment to the United States Constitution.

The record discloses that defendants Willard S. Paul and Marguerite Paul maintained a joint checking account at plaintiff-Rock Island Bank in the name of "Best TV Service," on which account both defendants Willard S. Paul and Marguerite Paul possessed authority to write checks. On November 2, 1976, defendants Willard S. Paul and Marguerite Paul each went, separately, to the plaintiff-bank, and drew a check on the account, but the sequence in which the checks were drawn is apparently not known. Defendant Willard S. Paul wrote a check in the amount of $36,091.12, the total balance in the Best TV account, and transferred the funds to a newly opened account in the Rock Island Bank. On the same day, defendant Marguerite Paul wrote a countercheck in the amount of $25,000 on the Best TV account, to purchase a cashier's check from the plaintiff bank, in like amount, which cashier's check was made payable to defendant Moline bank, and showed Best TV Service as remitter.

Both checks written on November 2, 1976, were debited as against the Best TV account and resulted in a $25,000 overdraft on that account. Plaintiff's bookkeeper, days later, found the error, and charged the $25,000 countercheck drawn by Marguerite Paul, as against Willard Paul's newly opened checking account in his name only. On November 8, 1976, Willard Paul questioned Robert Royster, an officer of plaintiff, regarding the $25,000 debit as against his personal checking account. Later that afternoon, Royster talked with the cashier at the defendant Moline bank, who acknowledged that the cashier's check purchased from plaintiff bank had been deposited in a checking account in the name of Marguerite Paul at the First National Bank of Moline.

Shortly after 9 a.m. on November 9, 1976, Royster telephoned the Moline bank and learned that a sizable check, drawn against the account into which the $25,000 cashier's check (which had been purchased from plaintiff bank) had been deposited, and that this check was payable to a savings and loan association in the State of Wisconsin and had been presented for payment to the Moline bank. Royster was informed that plaintiff bank would have until noon on November 9, 1976, to attempt to prevent disbursement of the check or the $25,000 in the account. Later that morning, plaintiff filed a verified complaint in the Circuit Court as against defendants Willard Paul, Marguerite Paul and the Moline bank, and, after an ex parte hearing, a judge of the Circuit Court ordered issuance of a "temporary injunction" after expressing some reluctance to do so, which injunction restrained all defendants from transferring the $25,000 held on deposit at the Moline bank. The order provided that the injunction should issue without bond and without notice and that a further hearing would be set as to the continuation of the injunction.

On November 10, 1976, summons was issued for a hearing on November 12, 1976. Defendants Willard Paul and the Moline bank were served prior to the hearing date, but Marguerite Paul was not served prior to the date, and neither she nor any representative appeared at the hearing on November 12, 1976. Defendants Willard Paul and the Moline bank both appeared at the November 12 hearing and moved to dissolve the injunction. After hearing testimony from Royster, an officer of the plaintiff bank, and from the cashier of defendant Moline Bank, a judge of the circuit court entered an order finding that the injunction of November 9 had been issued to preserve the status quo of the parties and prevent certain funds from leaving the State of Illinois and the jurisdiction of the court; that a portion of the $25,000 in the account at the Moline bank had been transferred to a savings and loan institution in the State of Wisconsin; that defendant Willard Paul had no control over the account at the defendant Moline bank; that only Marguerite Paul had control over the account at the Moline bank and that the November 9 injunction was in the nature of a preliminary injunction under section 3 of the Injunction Act (Ill. Rev. Stat. 1975, ch. 69, par. 3). The court also ordered that the preliminary injunction be dissolved as to defendant Willard Paul but continued as to defendants Marguerite Paul and defendant Moline bank, restraining those parties from transferring the $25,000, or any remaining part thereof, from the account of Marguerite Paul at the Moline bank.

Defendant Marguerite Paul was served with summons in this cause on November 15, 1976, in the State of Wisconsin, and on December 10, 1976, she filed a motion to dissolve the preliminary injunction. On December 16, 1976, a hearing was held on the motion of Marguerite Paul. While no evidence was taken at this hearing, the court was advised of the factual situation and of the legal position of the parties through the representations, statements, and arguments of counsel for the respective parties. At the hearing, plaintiff bank moved for leave to amend its complaint. After noting that the propriety of the preliminary injunction must be tested under plaintiff's original complaint, the trial court granted plaintiff leave to amend the complaint, and denied the motion of defendant Marguerite Paul to dissolve the preliminary injunction.

It appears from the record, also, that prior to the hearing at which the preliminary injunction was issued, the plaintiff Rock Island Bank had removed from the personal checking account of Willard S. Paul, at the plaintiff bank, the sum of $25,000. This fact was not presented to the judge at the hearing on November 9, 1976. As we have noted, defendant Marguerite Paul appeals to this Court under Supreme Court Rule 307(a). Defendants Willard Paul and the Moline bank did not appeal.

• 1 Defendant Marguerite Paul first argues, on appeal in the Court, that the preliminary injunction was not necessary to prevent an irreparable injury to plaintiff for which there is no adequate remedy at law. It is pointed out that section 3 of the Injunction Act (Ill. Rev. Stat. 1975, ch. 69, par. 3) provides:

"No court or judge shall grant a preliminary injunction without previous notice of the time and place of the application having been given 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."

As stated in Kable Printing Co. v. Mount Morris Bookbinders (1976), 63 Ill.2d 514, 523, 349 N.E.2d 36:

"A preliminary injunction under section 3 [of the Injunction Act] may be granted with or without notice, and if the latter, with a showing of `immediate and irreparable injury.' Additionally, the movant must establish the likelihood of ultimate success on the merits of the case."

In reviewing the denial of a preliminary injunction, the appellate court stated in Wessel Co. v. Busa (1st Dist. 1975), 28 Ill. App.2d 686, 690, 329 N.E.2d 414:

"The substantive issues of the instant case have not been decided. The sole role of an appellate court in addressing the grant or refusal of an interlocutory decree is restricted to a determination of whether the trial judge correctly exercised his broad discretionary powers. [Citation.] Therefore, each substantive issue will be ...


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