American Dixie Shops v. Springfield Lords, Inc.

• Court: Appellate Court of Illinois
• Writing for the Court: CARROLL
• Citation: American Dixie Shops v. Springfield Lords, Inc., 130 N.E.2d 532, 8 Ill.App.2d 129 (Ill. App. 1955)
• Decision Date: 05 December 1955
• Docket Number: Gen. No. 10052
• Parties: AMERICAN DIXIE SHOPS, Inc., Plaintiff-Appellee-Cross Appellant, v. SPRINGFIELD LORDS, Inc., William Phillips, Floyd R. Rambach, Defendants- Appellants-Cross Appellees, and Harry B. Luers and Cordie E. Luers, Defendants-Cross Appellees.

Page 532

130 N.E.2d 532

8 Ill.App.2d 129

AMERICAN DIXIE SHOPS, Inc., Plaintiff-Appellee-Cross Appellant, v. SPRINGFIELD LORDS, Inc., William Phillips, Floyd R. Rambach Defendants- Appellants-Cross Appellees and Harry B. Luers and Cordie E. Luers, Defendants-Cross Appellees.

Gen. No. 10052.

Appellate Court of Illinois, Third District.

Dec. 5, 1955.

Barber & Barber, Springfield, Clayton J. Barber and Alton G. Hall, Springfield, of counsel, for Springfield Lords, Inc., and Wm. Phillips, and Harry B. Luers and Cordie E. Luers.

A. M. Fitzgerald, Ensel, Martin, Jones & Blanchard, Springfield, James B. Martin, Springfield, of counsel, for Floyd R. Rambach.

Giffin, Winning, Lindner & Newkirk, Springfield, Charles G. Briggle, Jr., Springfield, Robert H. Brunsman and Walter Siebert, Springfield, of counsel, for appellees.

CARROLL, Justice.

The defendants, Springfield Lords, Inc., William Phillips and Floyd R. Rambach, (hereinafter referred to as Lords, Phillips and Rambach) appeal from an interlocutory order denying their motions to dissolve a temporary injunction.

The verified complaint was filed January 17, 1955 and alleges: that under a lease dated September 1, 1948 and extension thereof dated April 15, 1954 from defendant Floyd R. Rambach, a copy of said lease and extension thereof being attached to the complaint, plaintiff is in possession of the first floor of certain real estate, described in said lease by metes and bounds, and known as 526 East Adams Street, Springfield, Illinois; that defendant Lords as successor to Betty Gay Vogue, Inc., under a lease from Rambach and Harry B. and Cordie E. Luers is in possession of certain premises known as 528 East Adams Street, Springfield, Illinois, and which adjoins the premises occupied by plaintiff on the East; that both of said tracts of land are improved with a three-story brick building; that said buildings are divided by a single wall; that the front of both buildings is improved with a glass window for the purpose of displaying merchandise to the general public; that in approximately the center of the front of said buildings there is an entrance approximately five feet wide and five feet deep extending from the North line of the buildings to a stairway leading to the second and third floors thereof; that on the West side of said stairway entrance, there is an additional glass window approximately four feet in width by eight feet in height which forms a part of the windows located in the front of the building occupied by plaintiff and used for displaying merchandise to the public; that the glass windows and stair entrance, as the same now exist, were installed about July 1, 1936 and have since so remained with the knowledge and consent of the then and subsequent owners includidng Rambach; that Rambach leased the second and third floors of the premises occupied by plaintiff to Lords for a term of thirty years beginning January 1, 1955 and purportedly leased to Lords the East three feet of the North twenty feet of the Rambach property or approximately one-half of the stairway leading to the second floor; that by the terms of the plaintiff's lease and extension thereof, the lessors reserved the stairway on the East side of the premises leased to plaintiff for the use by all the tenants of said premises; that defendant Lords through its agent, William P. Phillips, is actively engaged in making extensive repairs and alterations to the premises described in its lease by use of lumber, steel and other building materials including the entire closing of the entrance to the stairway and the removing of said stairway and in so doing will close plaintiff's East window fronting on said stairway entrance, thus depriving plaintiff of valuable means of advertising to the public and of its right to light, air and view; that the alteration and repair plans of defendants for the closing of the stairway entrance will constitute continuous and repeated trespasses on plaintiff's premises and will deprive it of its quiet and peaceful use and enjoyment of its leasehold estate; that the noise and dust accompanying such construction will render the use of the building on the premises of plaintiff unattractive, disagreeable and unfit for the purpose of conducting plaintiff's business therein; that defendants are actively engaged in carrying out such plans and unless enjoined by an injunction issued immediately and without notice plaintiff will suffer irreparable injury.

On the day the complaint was filed, a temporary injunction was issued, without notice to any of the defendants enjoining defendants Lords, Phillips and Rambach from closing the entrance to the stairway in question and from in any manner interfering with the light, air and view of the window on the East side of the premises known as 526 East Adams Street. The Writ was served the same day on defendant Lords but was not served on Rambach until April 14, 1955. Harry B. Luers and Cordie E. Luers were later made parties on motion of Rambach.

All of the defendants filed answers and motions to dissolve the temporary injunction. The motions were heard by the court upon the verified pleadings, affidavits, oral testimony and certain exhibits.

On August 3, 1955, the court entered the interlocutory order from which this appeal has been taken. This order allowed the motions of defendants Harry B. Luers and Cordie E. Luers and dissolved the injunction insofar as it affected any part of the Luers property. It denied the motions of all other defendants except insofar as the temporary injunction covered any part of the Luers property.

Plaintiff has taken a cross-appeal from that part of the interlocutory order dissolving the injunction as to the Luers property.

The defendants Lords, Phillips and Luers have filed a motion to dismiss the cross-appeal and suggestions in support thereof. This motion has been taken with the case.

In support of said motion, it is urged that an appeal from an interlocutory order allowing a motion to dissolve a temporary injunction and dissolving the same, in whole or in part, is not authorized by law and hence this court is without jurisdiction to review the order dissolving the temporary injunction as to the defendants Harry B. Luers and Cordie E. Luers.

The authority of this court to review interlocutory orders concerning injunctions is found in Par. 202, § 78, Chapter 110, Illinois Revised Statutes 1953, and reads as follows:

'Whenever an interlocutory order or decree is entered granting an injunction or overruling a motion to dissolve the same, or enlarging the scope of an injunction order, or appointing a receiver, or giving other or further powers or property to a receiver already appointed, an appeal may be taken therefrom to the Appellate Court * * *.'

Under the authority granted by this section of the Practice Act, an appeal may be taken from an interlocutory order granting an injunction, enlarging the scope thereof, or overruling a motion to dissolve the same. Plainly, this section makes no provision for an appeal from an interlocutory order allowing a motion to dissolve a temporary injunction. An order allowing a motion to dissolve is interlocutory and, under the general rule that an appeal may be taken only from a final order, is not appealable. An order partially dissolving a temporary injunction is within the purview of the same general rule and an appeal in such case may not be taken. Liberty National Bank of Chicago v. City of Chicago, 342 Ill.App. 328, 96 N.E.2d 663.

Plaintiff herein seeks to prosecute a cross-appeal from the interlocutory order dissolving the temporary injunction insofar as the same affected or covered any part of the Luers real estate. If we correctly understand plaintiff's argument, it is to the effect that since the trial court allowed the motion of the Luers to dissolve the temporary injunction as to their real estate but denied the motions to dissolve of all other defendants, on an appeal from such interlocutory order by the defendants, the plaintiff may take a cross-appeal seeking a reversal of that part of the order allowing the defendants motion to dissolve and for affirmative relief by having the temporary injunction continued in force in its entirety.

While no case sustaining its position is cited, plaintiff argues that the interlocutory order from which an appeal is authorized by Section 78 of the Civil Practice Act, means the whole order or decree and not a part thereof and that an appeal from a part of such order overruling a motion to dissolve a temporary injunction brings up for review the whole order; that since said Section 78 further provides that:

'upon such appeal the Appellate Court may affirm, modify or reverse such interlocutory order or decree, and shall direct such proceedings to be had in the court below as the justice of the case may require.'

the Appellate Court has power to make an order substantially affecting the entire interlocutory order of the trial court and that, therefore, plaintiff should have the right to cross-appeal to obtain affirmative relief by way of reversal of the portion of the order dissolving the temporary injunction. Such argument cannot prevail for the reason that there is no statutory authority for the taking of an appeal from an interlocutory order dissolving a temporary injunction. Liberty National Bank of Chicago v. City of Chicago, supra. That portion of Section 78 of the Practice Act to which plaintiff refers concerns only the authority of the Appellate Court to deal with the subject matter of appeals taken from interlocutory orders where an appeal is authorized.

The rules of the Supreme and Appellate Courts prescribing the practice and procedure by which cases may be reviewed to which plaintiff refers apply to cross-appeals but are not authority for taking such cross-appeals in cases where appeals are not authorized by law.

Supreme Court Rule 35, Ill.Rev.St.1955, ch. 110, § 101.35, which...