Brown v. Illinois Iowa Power Co.
| Decision Date | 01 February 1944 |
| Docket Number | Gen. No. 9394. |
| Citation | 52 N.E.2d 722,321 Ill.App. 164 |
| Parties | BROWN v. ILLINOIS IOWA POWER CO. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Montgomery County; James G. Burnside, Judge.
Suit by McLin J. Brown, individually and as surviving partner of the law firm of Dryer & Brown, against Illinois Iowa Power Company to enjoin defendant from discontinuing gas and electric service to plaintiff. From an order granting a temporary injunction and an order denying motion to dissolve such temporary injunction, defendant appeals.
Reversed and remanded, with directions. LeForgee, Samuels & Miller, of Decatur, and D. R. Kinder, of Litchfield, for appellant.
Herbert W. Dey, of Hillsboro, and J. D. Wilson, of Nokomis, for appellee.
This is an appeal by defendant from an order granting a temporary injunction.
On August 8, 1942, the plaintiff, individually and as surviving partner of a law firm, filed in the circuit court of Montgomery County a complaint consisting of five counts. Four of the counts were at law and are immaterial to the present issue.
Count five was in equity and was the only count on which the injunction was based. Such count, so far as is material, alleged that at the time of the commencement of the suit defendant was and for several years prior thereto had been a public utility corporation furnishing gas and electric service to plaintiff at three places owned by him or in which he had an interest, namely, his residence, an office building and an apartment building; that plaintiff promptly paid all bills rendered for such service to his home prior to September 1, 1940, and to such other two properties prior to October 1, 1940; that on September 1, 1940, defendant owed plaintiff “in excess of $10,000” for legal services rendered, which defendant had refused to pay, and that thereupon plaintiff “rightfully” refused to pay any and all bills rendered by defendant for gas and electric service at such three places, and that “the amount due and owing to the defendant from the plaintiff is still greatly in excess of the amount owed by the plaintiff to the defendant for electricity and gas service;” that defendant had wrongfully threatened to discontinue such service; that defendant had ample current and gas to render such service; that there was no other public utility authorized to render such service; that plaintiff had no means of generating electricity or producing gas; and that if defendant carried out such threats plaintiff would suffer irreparable injury and would have no remedy at law.
Such count prayed that inasmuch as the matter was urgent and did not permit of notice for a preliminary injunction, a temporary order issue enjoining defendant from discontinuing such service until the court should otherwise order, and until an accounting might be had, and that upon a hearing the injunction be made permanent.
On December 21, 1942, plaintiff amended his complaint by adding an allegation that on February 1, 1935, the plaintiff was licensed to practice law. Such amendment also, to use the language of the amendment, “reversed the word ‘to’ and the word ‘from’ where they first followed the words” appearing above “at such three places.”
On March 3, 1943, plaintiff further amended his complaint by adding the words “at defendant's request” after the words “in excess of $10,000 for legal service rendered.”
On March 31, 1943, the plaintiff filed his third amendment alleging that the defendant on March 3, 1943, was and still is insolvent, and therefore unable to pay its common creditors.
Said amendment further alleged that the defendant had charged the plaintiff and rendered to him a bill for electric service at his residence since September 1, 1940, by which it had charged to him two per cent of the amount of each and every bill for failure to pay the same within ten days after the period for which the bill was rendered, and that defendant had rendered to plaintiff a bill for electric and gas service at said two other places so owned by plaintiff, by which it had charged to plaintiff two per cent of the amount of each and every bill so rendered for failure to pay the same within ten days after the period for which the bill was rendered; that the defendant at the time each and every bill was so rendered was indebted to plaintiff in a sum greatly in excess of each and every bill so rendered, including all prior bills rendered, including such two per cent, and that the said charges so made by defendant of such additional two per cent had given rise to a dispute between the plaintiff and the defendant as to the correct sum, if any, which plaintiff owed defendant for electric and gas service.
On August 8, 1942, on motion of plaintiff, a temporary writ of injunction was issued restraining defendant from discontinuing such service until such time as the court should direct, and until an accounting might be had, or until the court should make other order to the contrary.
On September 21, 1942, the defendant filed its motion to dissolve such temporary injunction.
On March 3, 1943, on motion of the plaintiff an order was entered ordering that the order of August 8, 1942, be vacated as to any moneys due from plaintiff to defendant for gas and electric service from and after March 3, 1943, and ordering that such injunction remain in full force and effect as to all charges for gas and electric service furnished by defendant to plaintiff accruing prior to March 3, 1943. Thereupon such order ordered that the motion of the defendant to dissolve the injunction granted and issued on August 8, 1942, be denied.
The defendant has brought this appeal to review the order of the trial court denying defendant's motion to dissolve such temporary injunction.
The three amendments to count five were allowed over the objection of the defendant, and defendant contends that the sufficiency of its motion to dissolve should not be affected by the amendments. We do not consider it necessary to discuss such question for it is our opinion that count five, both as originally filed, and as amended, did not state facts which would justify the issuance of such injunction.
Only three Illinois cases have been called to our attention in which we find discussed the question of the right of a...
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Union Elec. Co. v. Mansion House Center North Redevelopment Co.
...several out-of-state cases, e.g., Huff v. Electric Plant Board, 299 S.W.2d 817 (Ky.App.1957); Brown v. Illinois-Iowa Power Co., 321 Ill.App. 164, 52 N.E.2d 722 (App.Ct.Ill.1943); and Wisconsin Power & Light Co. v. Berlin Tanning and Manufacturing Co., 275 Wis. 554, 83 N.W.2d 147 (1957), whe......