Montgomery Ward & Co. v. United Retail, Wholesale & Department Store Employees of America , 348 Ill. App. 198 ( 1952 )

Mr. Presiding Justice Robson

delivered the opinion of the court.

This is an appeal from an order of the superior court of Cook county sustaining plaintiff’s, Montgomery Ward & Co., Inc., (hereinafter referred to as “Wards”) motion to strike and dismiss defendants’, United Retail, Wholesale & Department Store Employees of America, CIO, an unincorporated association et al. (hereinafter referred to as “Union”) petition for the assessment of claimed damages under sec. 12 of the Injunction Act, which are alleged to have arisen out of a temporary injunction issued by the court in 1945. The injunction was the result of a complaint in chancery filed by Wards in 1943 alleging that the Union, in conspiracy with others, had embarked upon a course of vilification against Wards, for the purpose of injuring its business and reputation. The complaint prayed that a temporary and permanent injunction be issued and asked for damages in the amount of $1,000,000.

In November of 1943 the Union filed a motion to strike Wards’ complaint and dismiss the suit for want of equity. In December of the same year, Wards presented a motion for a preliminary injunction. After argument, the court on June 25,1945, entered an order denying the Union’s motion to strike the complaint and dismiss the suit, and allowed Wards’ motion for a preliminary injunction, to be effective upon the court’s approval of an injunction bond, which was to remain in effect until the further order of the court. On June 27, 1945, Wards filed an injunction bond in the amount of $1,000, which was approved by the court. The injunction, which then became effective, prohibited the defendants from conspiring together or acting in concert to publish untrue statements for the purpose of causing Wards’ employees and customers to fear, dislike or distrust Wards, its officers or supervisory employees. On July 6, 1945, the Union filed a motion to vacate and set aside the. order of June 25. It was argued, and the court on the same day denied the Union’s motion. The Union refused to plead further and elected to stand on their motion to strike the corn-plaint and dismiss the suit. The court on July 6 entered an order which reads in part as follows:

“* * * the above-named defendants having elected to stand on their Motion to Strike the Complaint and Dismiss the Suit, therefore, Order of June 25, 1945 is made a final order.”

The Union appealed from the order of June 25,1945, and the final order of July 6, 1945, and this court on Nov. 20, 1946 (330 Ill. App. 49) reversed the decrees of June 25, 1945 and July 6, 1945, and remanded the case with directions to dismiss the complaint for want of equity. Wards then appealed to the Supreme Court, which, on March 18, 1948, affirmed this court, 400 Ill. 38.

On June 1, 1948, the Union filed in the trial court a suggestion of damages under section 12 of the Injunction Act claiming damages of $457,750 by reason of the alleged wrongful issuance of the temporary injunction on June 25,1945. On June 4,1948, Wards filed a motion to strike and dismiss the Union’s suggestion of damages. On June 7,1948, the Union filed a motion to dissolve the temporary injunction. Both motions were fully argued before the court. On June 22, 1948, the court entered an order dismissing the Union’s suggestion of damages and denying the Union’s motion to dissolve the temporary injunction on the grounds as stated by the court orally that the temporary injunction entered as a part of the order of June 25, 1945, merged in the final order of July 6, 1945, and as such became functus officio. On April 25, 1950, the Union filed a second petition for damages. The damages itemized were similar to those alleged in the first petition filed in June of 1948, except for the amount which was increased to $730,000. It also contained additional allegations pertaining to the filing and existence of a $1,000 injunction bond. On May 15, 1950, Wards filed a motion to strike and dismiss the Union’s second petition for damages alleging as one of the grounds that the order of June 22, 1948, was a final order which had previously adjudicated ail of the matters presented in the second petition. The matter was heard by the court and on November 24,1950, it entered an order dismissing the Union’s petition. The Union appealed from this order.

The first question we must decide is whether or not the order entered on June 22, 1948, was a final order and res judicata of the issues raised in the Union’s petition of April 25,1950. The parties to the first petition, pursuant to which the order of June 22, 1948, was entered, were the same as those to the second petition. Both alleged the issuance of the same temporary injunction. Both claimed the same injury. Both sought recovery of the same damages. The only difference is the increase in damages and the inclusion of allegations pertaining to the injunction bond. Do these two items change the nature of the petition? Certainly the increase in the amount of damages does not and the Union makes no contention that it does.

As to the bond, under the Illinois law there are two ways by which a person injured by the wrongful issuance of a temporary injunction may seek damages : (1) by the filing of a petition in the equity court which issued the injunction, pursuant to sec. 12 of the Injunction Act (Smith-Hurd Ann. St., ch. 69, sec. 12) and (2) by an action at law on the injunction bond. These procedures are separate and distinct. The action on the bond is strictly a legal action to enforce a legal right. Lovejoy v. Stelle, 18 Ill. App. 281, 283; Warner v. Wende, 228 Ill. App. 153, 160. Under section 12 the proceeding is in equity to assess damages for the wrongful suing out of an injunction irrespective of whether an injunction bond has been given or not. Kohlsaat v. Crate, 144 Ill. 14. The Union cannot claim any right under the bond pursuant to the provisions of section 12. This is a legal right and must be treated as such. Allegations pertaining to the bond were not properly a part of the Union’s second petition to assess damages. We must conclude that these two differences were not material to the Union’s cause of action and did not vary or change the issues from those raised in the first petition.

The Union’s first petition for damages alleged the wrongful issuance of the temporary injunction; that the injunction had been set aside and vacated, and that the Union had been damaged. Wards’ motion to strike was addressed to the merits of the petition, the grounds being: (1) the temporary injunction had not been dissolved but had merged in the final order and was functus officio; (2) the alleged damages did not arise by reason of the temporary injunction; (3) the alleged damages could not be equitably assessed against Wards, and (4) the suggestion was not timely. The motion had the same legal effect as a demurrer at common law, and the order of June 22, 1948, striking the Union’s first petition decided the merits of the case as though all the facts alleged in the petition had been proved at a hearing. People ex rel. Chilcoat v. Harrison, 253 Ill. 625; Doner v. Phoenix Joint Stock Land Bank of Kansas City, 381 Ill. 106.

The language of the order is clear and unambiguous. It reads as follows:

“This cause coming on to be heard on the motion of the plaintiff to strike and dismiss defendants’ suggestion of damages, and the Court having considered the pleadings and the record in this case and the previous opinions of the Appellate Court and the Supreme Court in this case, and having heard the arguments of counsel and being fully advised;

“It is hereby ordered that the motion of the plaintiff to strike and dismiss defendants’ suggestion of damages be and the same is hereby granted; and-

“It is further ordered that the defendants’ suggestion of damages be and the same is hereby dismissed; and

“It is further ordered that the motion of the defendants to dissolve the temporary injunction be and the same is hereby denied. ’ ’

The result of this order was a dismissal of the Union’s claim for damages and a finding by the trial court, not that there was a temporary injunction to dissolve, but that the temporary injunction which had become functus officio by the issuance of the final order of July 6, 1945, received no new life from the decision of this court which was affirmed by the Supreme Court. Gage v. Parker, 178 Ill. 455; Leslie E. Keeley Company v. Hargreaves, 236 Ill. 316; Nestor Johnson Mfg. Co. v. Goldblatt, 371 Ill. 570. This may have been right or wrong. It was nevertheless a final order and appealable and as to the Union a bar to any subsequent action involving the same issues. 30 Am. Jur., p. 914; McDowell v. Cochran, 11 Ill. 31; Doner v. Phoenix Joint Stock Land Bank of Kansas City, supra.

The Union cites Shaw v. Dorris, 290 Ill. 196, Campbell v. Powers, 139 Ill. 128, and Fort Dearborn Lodge v. Klein, 115 Ill. 177, as cases in support of their contention that the order entered by the court in June of 1948 was interlocutory and not a final disposition of the petition. In each instance the cases had to do with motions concerning the sufficiency of the pleadings in which no order of dismissal was éntered and they rightly hold that at any time before final judgment the whole record is before the court and an erroneous ruling theretofore made may be set aside and the error corrected. Here the merits of the action had been con-eluded by the order of June 22, 1948, and the Union having failed to appeal, is bound by its findings.

The order of the trial court is affirmed.

Order affirmed.