Bohn Aluminum & Brass Co. v. Barker

• Decision Date: 01 October 1973
• Docket Number: No. 45051,45051
• Citation: 55 Ill.2d 177,303 N.E.2d 1
• Court: Illinois Supreme Court
• Parties: , 84 L.R.R.M. (BNA) 2551, 75 Lab.Cas. P 53,485 BOHN ALUMINUM & BRASS COMPANY, Appellee, v. Lewis BARKER, Appellant.

Page 1

303 N.E.2d 1

55 Ill.2d 177, 84 L.R.R.M. (BNA) 2551,

75 Lab.Cas. P 53,485

BOHN ALUMINUM & BRASS COMPANY, Appellee, v. Lewis BARKER, Appellant.

No. 45051.

Supreme Court of Illinois.

Oct. 1, 1973.

Harold A. Katz, Irving M. Friedman, and Zenia S. Goodman, Chicago (Harry G. Fins, Chicago, of counsel), for appellant.

Robert L. Gibson, Paris, for appellee.

WARD, Justice:

The defendant, Lewis Barker, appealed from an order of the circuit court of Cass County issuing a temporary restraining order and from an order of that court denying the defendant's motion to dissolve it. The Appellate Court for the Fourth District, with one justice dissenting, dismissed the appeal, holding that these orders were not appealable under Rule 307, Ill.Rev.Stat.1971, c. 110A, § 307 (50 Ill.2d R. 307). (3 Ill.App.3d 600, 278 N.E.2d 247.) We granted leave to appeal.

On May 5, 1970, a labor dispute was in progress at the plaintiff's manufacturing plant near Beardstown. On that date, the plaintiff filed a verified complaint for permanent injunction, temporary restraining order, and preliminary injunction, charging the defendant and the members of the labor union with certain acts of intimidation and violence and with preventing ingress to and egress from the plaintiff's plant. On the same date the plaintiff also filed a motion for a temporary restraining order supported by an affidavit and a motion for preliminary injunction. On the day the pleadings were filed, the court, without notice to the defendant, issued a temporary order restraining the defendant and members of the union from interfering with ingress to or egress from the plaintiff's plant and from threatening and intimidating employees of plaintiff or other persons in specific ways. No bond was required of the plaintiff.

The temporary restraining order provided that it would expire on May 15, 1971, unless extended by order of the court for good cause shown. At the same time that the court issued the restraining order it also set the motion for preliminary injunction for hearing on May 14, and directed that notice of the hearing be given to the defendant. On May 13 the defendant filed his motion to dissolve the restraining order. On May 14 the court, on the defendant's motion, continued until 8:30 A.M. on May 19 the hearing on the motion for preliminary injunction and set the motion to dissolve the restraining order for hearing at the same time. The court also ordered that the restraining order should remain in effect until that time but should then expire unless further extended. On May 19, after hearing argument of counsel, the court denied the motion to dissolve the restraining order. The order was not further extended, however, and it thus expired at that time. No action is shown by the record to have been taken as to the motion for preliminary injunction.

The defendant maintains that the temporary restraining order was appealable under Rule 307(a), which provides: 'An appeal may be taken to the Appellate Court from an interlocutory order of court (1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.' We agree, and therefore the judgment of the appellate court must be reversed. Before discussing the ground for reversal, it is appropriate to mention that, before the appellate court, the parties, at the court's request, filed supplemental briefs addressed to the question whether the appeal had been made moot by the expiration of the restraining order. While the majority opinion does not discuss that issue, it is apparent that the appellate court concluded that the case was not moot, since the case was disposed of on the ground of nonappealability. The plaintiff has not renewed its claim of mootness in this court.

From its enactment in 1874 until 1967 the Injunction Act referred to injunctions generally, without explicitly distinguishing between permanent and temporary injunctions and without making specific provision for the latter. Some provisions of the Act, however, such as sections 8, 9, and 12 (Iil.Rev.Stat.1965, ch. 69, pars. 8, 9, 12), which deal with injunction bonds and with damages for the wrongful issuance of an injunction, could only have been applicable to preliminary, as opposed to permanent, injunctions (Chicago Title & Trust Co. v De Lasaux, 336 Ill. 522, 529--530, 168 N.E. 640; Schien v. City of Virden, 5 Ill.2d 494, 503, 126 N.E.2d 201; House of Vision, Inc. v. Hiyane, 42 Ill.2d 45, 49, 245 N.E.2d 468), thus evidencing a legislative intention that such relief might be awarded. The same intention was disclosed by section 3 (par. 3), which forbade the granting of an injunction without previous notice to the adverse party unless it appeared from the complaint or from an accompanying affidavit that 'the rights of the plaintiff will be unduly prejudiced if the injunction is not issued immediately or without notice.' For many years trial courts in this State have entertained applications for preliminary injunctions, referring to them, interchangeably, as preliminary injunctions, temporary injunctions, interlocutory injunctions, restraining orders, and interlocutory orders. Baird v. Community High School Dist. No. 168, 304 Ill. 526, 529, 136 N.E. 671; People ex rel. Chicago Bar Ass'n v. Standidge, 333 Ill. 361, 362, 364, 164 N.E. 844; Schuler v. wolf, 372 Ill. 386, 389, 24 N.E.2d 162; Almon v. American Carloading Corp., 380 Ill. 524, 529, 44 N.E.2d 592; Centennial Laundry Co. v. West Side Organization, 34 Ill.2d 257, 261, 215 N.E.2d 443; Cohen v. Sparberg, 316 Ill.App. 140, 141, 44 N.E.2d 335; Northern Illinois Coal Corp. v. Langmeyer, 340 Ill.App. 423, 429, 92 N.E.2d 802.

Since 1887, when legislation was enacted making certain interlocutory orders appealable (Laws of 1887, p. 250), review by the appellate court of an order granting a preliminary injunction or overruling a motion to dissolve it has been available, formerly under section 123 of the Practice Act of 1907 (Laws of 1907--08, p. 409) and section 78 of the Civil Practice Act of 1933 (Ill.Rev.Stat.1935, ch. 110, par. 202). Prior to 1955 an order allowing a motion to dissolve a preliminary injunction was not appealable (American Dixie Shops, Inc., v. Springfield Lords, Inc., 8 Ill.App.2d 129, 135, 130 N.E.2d 532), but in that year section 78 was broadened to permit review of orders granting, modifying, refusing, dissolving, and refusing to dissolve a preliminary injunction. (Laws of 1955, p. 2277.) Section 78 was repealed in 1963 (Laws of 1963, p. 2691), but its provision for interlocutory review of preliminary injunctions was preserved in a rule of this court, which currently appears as Rule 307. No question appears ever to have been made as to the appealability of such orders, and, as we understand its position, the plaintiff here does not contend that if the order of the circuit court had worn the tag of 'preliminary injunction' the appellate court would have lacked the power to review it.

Prior to the 1967 amendment of the Injunction Act it had been recognized that in determining what constitutes an injunction order subject to interlocutory review the courts would look to the substance rather than to the form. (Valente v. Maida, 24 Ill.App.2d 144, 149, 164 N.E.2d 538.) In Valente an order staying proceedings in a case pending the rendition of judgment in a related case was treated as a reviewable order, notwithstanding that the order used the term 'stay' rather than 'injunction.' The same conclusion was reached with respect to an interlocutory appeal from an order denying a motion for a stay of proceedings pending arbitration of the claim in controversy. (School Dist. No. 46 v. Del Bianco, 68 Ill.App.2d 145, 215 N.E.2d 25; Applicolor, Inc. v. Surface Combustion Corp., 77 Ill.App.2d 260, 222 N.E.2d 168.) The Valente case was also followed in Wiseman v. Law Research Service, Inc., 133 Ill.App.2d 790, 270 N.E.2d 77, where the trial court denied a motion to stay proceedings until the conclusion of an appeal in a different case. Although the defendant in Wiseman apparently did employ the word 'enjoin' as well as 'stay', the appellate court commented, 'Even if defendant had not used the open-sesame word 'enjoin' to invoke this rule (i.e., Rule 307), the words 'stay' and 'restrain' mean about the same and had a 'stay' alone been allowed its effect would have been to 'enjoin' further proceedings.' 133 Ill.App.2d at 791, 270 N.E.2d at 78.

The term 'temporary restraining order' was introduced into the Injunction Act in 1967 by an amendment which added a new section, numbered 3--1, that prescribed the conditions for the issuance of such an order without notice. (Laws of 1967, p. 2715, Ill.Rev.Stat.1967, ch. 69, par. 3--1.) The same legislation also amended section 9, which relates to injunction bonds, so as to provide for such a bond in connection with a temporary restraining order as well as a preliminary injunction, and clarified section 3 by inserting the word 'preliminary' before the word 'injunction.'

The language of section 3--1 is patterned after, although it does not follow verbatim, the language of Rule 65(b) and 65(d) of the Federal Rules of Civil Procedure. The Federal courts have drawn a distinction between a temporary restraining order and a preliminary injunction. The latter is held to be appealable under the statutory provisions permitting appeals from interlocutory orders granting, refusing, dissolving, or refusing to dissolve an injunction (28 U.S.C. sec. 1292(a)). A corresponding ruling with respect to a temporary restraining order is ordinarily held not to be appealable. See Moore, Federal Practice, par. 110.20 (5) (2d ed.).

There are decisive differences between the setting of Federal Rule 65(b) and that of section 3--1 of the Injunction Act, however, which defeat any argument that the enactment of that section imported into our practice the Federal doctrine of nonappealability. Rule 65(a)(1) provides, 'No preliminary...