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11/25/87 John Galligan Et Al., v. the Honorable Harold

November 25, 1987

JOHN GALLIGAN ET AL., PLAINTIFFS-APPELLEES

v.

THE HONORABLE HAROLD WASHINGTON, MAYOR OF THE CITY OF CHICAGO, ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

516 N.E.2d 894, 163 Ill. App. 3d 701, 114 Ill. Dec. 739 1987.IL.1755

Appeal from the Circuit Court of Cook County; the Hon. David J. Shields, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McNAMARA delivered the opinion of the court. RIZZI and FREEMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Defendants, Harold Washington, Mayor of Chicago; the city of Chicago; and Fred Rice, David Fogel, James Rosas, Carol Czarnecki, and Carole Brawner of the Chicago police department, appeal from an order of the trial court granting plaintiffs John Galligan and Joseph Miedzianowski post-judgment relief pursuant to section 2-1401 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401.) After finding a mutual mistake of fact, the trial court modified an agreed order entered the previous year. The court modified the portion of the order showing a dismissal of a claim for damages with prejudice to indicate a dismissal without prejudice. The portion of the order indicating a dismissal with prejudice as to an equitable action remained unchanged. The sole issue on review is whether the trial court erred in granting plaintiffs relief under section 2-1401.

On August 3, 1984, the police board of the city of Chicago charged plaintiffs, both police officers, with several violations of the rules of the police department. Effective August 4, 1984, plaintiffs were suspended for 30 days.

On August 9, 1984, plaintiffs filed suit against defendants, alleging that they had been wrongfully suspended without a proper hearing. The complaint was entitled "Verified Complaint in Chancery for Injunction and Other Relief." Plaintiffs sought the following relief:

"A. For Temporary Restraining Order and a Preliminary Injunction to be Issued without bond, providing that: I. The defendants herein and all of those persons acting in concern with

them are enjoined and restrained from terminating or suspending the plaintiffs' employment with the Chicago Police Department without providing the opportunity for a full and fair hearing before the Chicago Police Board concerning the charges of Mr. Morales and Mr. Khoshaba. II. For an award of compensatory and punitive damages for the violations

of plaintiffs' Constitutional rights, as set forth herein. III. For such other and further relief as this Honorable Court may deem

just and proper, together with the costs and disbursements of this suit."

On August 24, 1984, defendants filed a motion to strike and dismiss the complaint. Defendants argued that plaintiffs had not yet exhausted their administrative remedies before the police board; that they had not suffered irreparable harm; that certain defendants were improperly named as parties; that defendants were immune from liability in damages pursuant to section 2-208 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 2-208); and that the complaint failed to state a cause of action.

Defendants' memorandum in support of the motion to strike and dismiss argued that "the value of lost earnings and fringe benefits is clearly ascertainable in monetary terms. Should there have occurred a wrongful discharge or suspension, plaintiff is possessed of an adequate remedy at law for the collection of same, and is not properly entitled to injunctive relief. [ G. H. Sternberg & Co. v. Cellini (1973), 16 Ill. App. 3d 1, 305 N.E.2d 317.] The instant action is therefore both premature ...


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