Amschler v. Remijasz

• Decision Date: 13 June 1950
• Docket Number: Gen. No. 45013
• Parties: AMSCHLER et al. v. REMIJASZ et al.
• Court: United States Appellate Court of Illinois

Page 386

93 N.E.2d 386

341 Ill.App. 262

AMSCHLER et al. v. REMIJASZ et al.

Gen. No. 45013.

Appellate Court of Illinois, First District, Second Division.

June 13, 1950.

Henry C. Ferguson, Chicago, for appellants.

Rathje, Kulp, Sabel & Sullivan, Chicago (Joseph J. Sullivan, Jr., Chicago, of counsel), for appellees.

FRIEND, Presiding Justice.

In July 1944 Frank Remijasz, owner of an apartment building at 6136 South Bishop street, Chicago, entered into a so-called restrictive covenant agreement with certain other property owners in a square-block area providing that neither they nor their successors or assigns would sell, convey or lease to or permit the occupancy of their property by any Negro or Negroes prior to December 31, 1960. In November 1947 Remijasz sold the premises to Kathryn A. Garrette, who conveyed them to Harold C. Alexander; both Kathryn A. Garrette and Harold C. Alexander were Negroes. Immediately following the sale, Remijasz intended to move from the premises and yield occupancy of his apartment to Alexander, but on November 8, 1947 the plaintiffs Ludwig Amschler and Johanna Amschler, owners of property at 6139 South Laflin street, and Paul F. Ehler, owner of property at 6131 South Laflin street, all of whom, like Remijasz, had entered into the restrictive covenant agreement, filed a complaint in the Superior Court seeking to restrain defendants Garrette and Alexander from selling or leasing the premises to any Negro or Negroes, and to enjoin Alexander from occupying said premises until further order of the court. An injunction issued as prayed. Thereafter, on December 1, 1947, Garrette and Alexander moved to dissolve the injunction on the ground that it had been issued without notice. The chancellor overruled the motion, from which order no appeal was taken, but instead defendants had leave to and did, on March 31, 1948, file their answer, averring in substance that the restrictive covenant entered into between the property owners in that block was against public policy, null and void, and in violation of the constitutions of the United States and the State of Illinois.

At the time the temporary injunction was issued, judicial enforcement of racial restrictive covenants was held to be lawful under the decisions of the United States Supreme Court, the United States Circuit Court of Appeals, and of substantially all state courts of review whenever and whereever the question was presented for determination. Corrigan v. Buckley, 271 U.S. 323, 46 S.Ct. 521, 70 L.Ed. 969; Mays v. Burgess, 79 U.S.App.D.C. 343, 147 F.2d 869, 162 A.L.R. 168, certiorari denied, 325 U.S. 868, 65 S.Ct. 1406, 89 L.Ed. 1987, petition for rehearing denied, 325 U.S. 896, 65 S.Ct. 1567, 89 L.Ed. 2006; Burke v. Kleiman, 277 Ill.App. 519; and many other cases cited in plaintiffs' brief. However, on May 3, 1948, in the consolidated cases of Shelley v. Kraemer and McGhee v. Sipes, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, 3 A.L.R.2d 441, the United States Supreme Court reinterpreted the law, departed from its former concepts as to judicial enforcement of racial restrictive covenants, and overturned all previous contrary decisions of courts of review. The recent Illinois case of Tovey v. Levy, 1948, 401 Ill. 393, 82 N.E.2d 441, discusses the holding in the Shelley opinion.

By the decision in those consolidated cases the United States Supreme Court made racial restrictive covenants unenforceable by judicial action; consequently the cast at bar became moot; and nothing remained to be done by the chancellor except to dismiss the complaint. Accordingly, on May 24, 1948, plaintiffs made a motion to that effect. On the same day defendants moved for dissolution of the injunction and presented their suggestion of damages. The motion to dissolve was overruled; plaintiffs' motion to dismiss the suit was allowed; and the court reserved jurisdiction for the sole purpose of assessing damages, hearing of which was continued generally. Subsequently, on March 15, 1949, pursuant to notice, plaintiffs moved to strike the suggestion of damages, 'for the reason that the temporary injunction heretofore issued in this cause has not been dissolved but the suit has been dismissed on motion of the plaintiffs as a direct result of the recent decision of the United States Supreme Court.' After some delay, the court on May 24, 1949, sustained the motion, and ordered that the suggestion of damages be stricken and dismissed. Defendants Garrette and Alexander appeal from that order.

In R. M. C. Corp. v. Genco, Inc., 330 Ill.App. 192, 71 N.E.2d 189, 191, we held that 'the only authority for the assessment of damages upon the sissolution of an injunction is Section 12 of the Injunction Act,' and cited the early case of Elder v. Sabin, 66 Ill. 126, wherein the court said that 'the statute only allows the assessment of damages sustained by reason of improperly suing out the injunction, and the damages must be confined alone to that ground.' Defendants take the position that the voluntary dismissal of the complaint by plaintiffs amounts...