Appeal from the Circuit Court of Du Page County; the Hon. John
S. Teschner, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
This is an interlocutory appeal from the sua sponte order of the circuit court of Du Page County which dissolved the injunction entered in an agreed order nine months earlier. Because the trial court lacked jurisdiction to dissolve the injunction, we vacate the dissolution order and remand.
Plaintiff, Edgar C. Bundy, filed a complaint against defendants, Church League of America (CLA) and several individuals who are members of the CLA's board of directors, on March 16, 1983. The CLA is an unincorporated association organized for educational and literary purposes. Bundy had served as executive secretary, director, and member of the CLA, but his current status is part of the dispute giving rise to this action. The complaint alleged that defendants planned a meeting without proper notice or quorum as required by the CLA's bylaws, that proposed amendments scheduled for consideration by defendants would deprive the membership of its right to vote, and that defendants violated CLA's bylaws in purportedly removing Bundy from the CLA board. The original complaint was in two counts seeking declaratory and permanent injunctive relief. A motion was made later to add a third count which sought an accounting on the basis of alleged mismanagement.
On March 16, 1983, Bundy petitioned for and obtained from the circuit court a temporary restraining order (TRO) blocking the actions planned by defendant. On March 28, 1983, the TRO was continued until April 20, 1983. On that date, the trial court entered an order which recited the provisions of an oral compromise reached by the parties. The order enjoined the parties from taking certain actions as provided for in their compromise agreement.
On December 13, 1983, defendants filed a petition for rule to show cause why Bundy should not be adjudged in contempt for certain alleged conduct which violated the agreed order of April 20. On January 17, 1984, after a hearing on that petition, the trial court found that no justiciable issues existed on the pleadings and on that basis denied the petition, dissolved the TRO and the April 20 injunction, dismissed Bundy's complaint without prejudice and granted him 28 days to file an amended complaint. The dissolution order had not been requested by either party.
On February 10, 1984, Bundy filed an amended complaint and an emergency motion for another TRO. The record does not indicate whether the TRO was granted, but does include a motion dated February 17 by defendants seeking dissolution of the TRO. On February 16, 1984, Bundy filed his notice of interlocutory appeal from the January 17 order.
On appeal, Bundy contends that the trial court lacked jurisdiction to enter its dissolution order and that the controversy is justiciable. Before reaching Bundy's contentions, we address defendants' assertions that this court lacks jurisdiction, that the appeal is moot, and that the appellate issues have been waived by Bundy's filing of an amended complaint.
Of the issues raised by the parties, of necessity the first which should be addressed is the jurisdiction of this court to hear the appeal. Bundy brings this appeal as an interlocutory one as of right under Supreme Court Rule 307 (87 Ill.2d R. 307). Defendants contend that the order appealed from was a final order, not appealable under Rule 307.
The January 17 order dissolving the injunction also struck Bundy's complaint "without prejudice" and permitted Bundy 28 days to file an amended complaint. The order further specified that it was entered "without prejudice" to Bundy's possible right to retirement benefit payments from the CLA. On February 10, 1984, Bundy filed an amended complaint again seeking declaratory and injunctive, preliminary and permanent, relief. Bundy's notice of appeal was filed on February 16, 1984, and expressly invoked Rule 307.
• 1 Rule 307(a)(1) provides that "[a]n appeal may be taken to the Appellate Court from an interlocutory order of court * * * granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction * * *." (87 Ill.2d R. 307(a)(1).) The January 17 order dissolved the injunction but dismissed the complaint without prejudice. To be final, a dismissal order must be entered with prejudice. (Peterson v. Tazewell County (1975), 29 Ill. App.3d 915, 330 N.E.2d 888.) Thus, the January 17 order was interlocutory and was appealable as of right pursuant to Rule 307.
Defendants rely upon Statistical Tabulating Corp. v. Hauck (1972), 5 Ill. App.3d 50, 282 N.E.2d 524. There, the appellate court dismissed an appeal from a permanent injunction because it was a final order which resolved fewer than all the claims rather than an interlocutory order. While Supreme Court Rule 301 permits appeals from final orders generally, Rule 304 permits appeals from final orders which resolve fewer than all claims only where the trial court expressly finds that there is no just reason for delaying enforcement or appeal. (87 Ill.2d Rules 301, 304.) Like the present case, the trial court in Statistical Tabulating had not made such a finding. However, the present case is distinguishable in that the order appealed from is interlocutory as a whole rather than final as to the injunctive part. The January 17 order dismissed the whole complaint without prejudice, leaving the injunction issue open to further litigation.
• 2, 3 Defendants also contend that this appeal is moot because the action which Bundy seeks to prevent by injunction, a meeting of the CLA board of directors in which that organization's bylaws are amended to eliminate member voting, has already taken place upon the dissolution of the injunction which had barred that action. A case can become moot when, pending the decision on appeal, events occur which render it impossible for the reviewing court to grant effectual relief due either party. (Bluthardt v. Breslin (1979), 74 Ill.2d 246.) There is nothing in the record to substantiate defendants' assertion that the CLA board has taken the action which had been prohibited by the agreed order. However, a reviewing court can take judicial notice of such events which, while not appearing in the record, disclose that an actual controversy no longer exists between the adverse parties. (Bluthardt v. Breslin (1979), 74 Ill.2d 246.) Furthermore, Bundy failed to obtain a stay of the January 17 order during the pendency of this appeal, as he might have done (see 87 Ill.2d R. 305(b)(4)), and which would have prevented the CLA board's action. In the absence of such a stay, it is possible for events to render an appeal moot. See Avondale Savings & Loan Association v. Amalgamated Trust & Savings Bank (1979), 78 Ill. App.3d 244, 397 N.E.2d 121.
However, Bundy's first contention is that the trial court lacked jurisdiction to dissolve the injunction. Every act of the court beyond its jurisdiction is void. (People ex rel. Prince v. Graber (1947), 397 Ill. 522; J.L. Simmons Co. v. Capital Development Board (1981), 98 Ill. App.3d 445, 424 N.E.2d 821.) If we determine that the order dissolving the injunction is void for lack of jurisdiction, the injunction would have never lost its effect. In that event, the events asserted by defendants, if they occurred, could only have occurred in violation of the injunction. Since a determination of the validity of the trial court's order may indeed then have an effect upon the parties, an actual controversy still exists which warrants resolution by this court. Thus, with regard to the issue of the trial court's jurisdiction to enter the challenged order, this appeal could not have been rendered moot by the asserted events.
In the form of a motion to dismiss the appeal, defendants contend that Bundy, having filed an amended complaint following the dismissal of his complaint without prejudice, has waived any objection to the trial court's ruling on the former complaint. Bundy objects to the motion both as to the form of the motion and as to its merits. Because of our determination ...