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47th & State Currency v. B. Coleman Corp.

OPINION FILED DECEMBER 13, 1977.

47TH & STATE CURRENCY EXCHANGE, INC., PLAINTIFF-APPELLEE AND APPELLANT,

v.

B. COLEMAN CORPORATION, DEFENDANT-APPELLANT AND APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE A. HIGGINS, Judge, presiding.

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

Rehearing denied January 9, 1978.

These consolidated appeals result from a proceeding under section 29 of "An Act in relation to * * * community currency exchanges * * *" (Ill. Rev. Stat. 1973, ch. 16 1/2, par. 56.2) for temporary and permanent injunctive relief against defendant's operation of an unlicensed currency exchange. Defendant, in No. 76-204, appeals from numerous orders entered by the trial court. Because of the nature of our disposition of this appeal, neither the facts nor the orders appealed from need be set forth in detail. In No. 76-761, plaintiff appeals from an order of the trial court denying plaintiff's motion to recover reasonable expenses and attorneys fees under section 41 of the Civil Practice Act ("Untrue statements") (Ill. Rev. Stat. 1973, ch. 110, par. 41), incurred during contempt proceedings against defendant.

Plaintiff's complaint under section 29 of "An Act in relation to * * * community currency exchange * * *" sought temporary and permanent injunctions against defendant's operation of an unlicensed community currency exchange. The complaint alleged that defendant was engaging in a number of acts which may, under the Act, be performed only by licensed currency exchanges, and that defendant was violating section 8 of the Act (Ill. Rev. Stat. 1973, ch. 16 1/2, par. 38) by unlawfully integrating the conduct of a currency exchange and a real estate business at the same location.

Pursuant to the complaint, the trial court entered an ex parte temporary restraining order on October 24, 1974. On October 29, 1974, the ex parte injunction was dissolved and replaced by a preliminary injunction prohibiting defendant from engaging in certain specified courses of conduct. On October 30, 1974, defendant appealed that injunction order to this court.

On November 6, 1974, defendant moved to strike and dismiss the complaint under section 45 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 45). Upon being advised that the Illinois Supreme Court had granted defendant's motion for a direct appeal from the injunction order, the court continued the matter pending outcome of the appeal.

The appeal referred to was defendant's appeal from the October 29, 1974, injunction. This court granted defendant's motion for a stay on November 7, 1974. On direct appeal to the Illinois Supreme Court, the stay order was reversed and the injunction affirmed. Supreme Court No. 47197, order dated January 29, 1975.

On April 17, 1975, plaintiff filed a petition for a rule to show cause why the defendant should not be held in contempt of court for violation of the October 29, 1974, injunction. The petition alleged that defendant continued to engage in the prohibited activities despite the supreme court's ruling.

The trial court entered a rule to show cause, giving defendant 15 days to respond. Numerous extensions were granted, and defendant's answer to the rule to show cause was not filed until June 5, 1975. In the interim, defendant filed a motion in the supreme court requesting recall and modification of its mandate, contending that a portion of the language contained in the supreme court's mandate was not part of the original order of the court, but was added by Clell L. Woods, Clerk of the Supreme Court. By order dated May 14, 1975, the supreme court denied the motion to recall and modify its mandate.

Defendant then filed an appeal to the United States Supreme Court pursuant to 28 U.S.C. § 1257 (1970). The trial court suspended further proceedings on the merits of the case pending outcome of that appeal, but proceeded on the rule to show cause.

On January 16, 1976, plaintiff filed a motion to expand the rule to show cause, based on allegations that defendant had consistently ignored the injunction order of October 29, 1974, and had, in further violation of the October 29, 1974, injunction, entered into an agreement with the Chicago Housing Authority to cash checks for the residents of a CHA housing project.

Following a hearing on the rule to show cause, the trial court found defendant in contempt of court. The court made detailed findings of fact. All of these were adverse to defendant. Defendant was ordered to pay a fine of $5,000.

On March 11, 1976, plaintiff filed a motion under section 41 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 41) to recover expenses and attorneys fees incurred during the contempt proceeding. Defendant answered this motion by alleging that its notice of appeal having been filed previous to the motion, the trial court was without jurisdiction to entertain the motion. No hearing was held. The trial court denied plaintiff's motion "on the ground that section 41 does not provide for the recovery of reasonable attorneys fees in contempt proceedings."

The record further reflects that defendant refused to pay the fine imposed, and that another petition for a rule ...


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