Clayton v. Hubbard
| Decision Date | 26 January 1962 |
| Docket Number | Gen. No. 61-0-3 |
| Citation | 179 N.E.2d 845,33 Ill.App.2d 439 |
| Parties | Brookin CLAYTON, Clifton Patton, Leslie Morgan and Houston Davis, Plaintiffs-Appellees, v. Garfield HUBBARD, Henry Johnson, and Union National Bank of East St. Louis, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Raymond J. Nester and Louis Beasley, E. St. Louis, for appellants.
No appearance for appellees.
The plaintiffs below, alleging that they were duly qualified deacons and trustees of the Morningstar Baptist Missionary Church of East St. Louis, brought suit against the pastor and treasurer of said church. They alleged in their complaint that certain funds were deposited in the defendant bank to be used for a new church, that the individual defendants were refusing to use these funds for such purpose, and that 'the plaintiffs fear that the defendants will withdraw, convey and encumber or otherwise dispose of the assets of the said savings account unless restrained by the injunction of this Court.' The plaintiffs further allege that they 'are not able to furnish bond for the injunction prayed for herein, and if notice of their application for injunction were required to be given they would be unduly prejudiced.' They pray for an accounting, for an injunction without notice and without bond enjoining the defendants from 'removing, distributing, withdrawing, conveying, encumbering or otherwise disposing of any of the assets in the Union National Bank, and from attempting to do so,' and for specific performance of defendants' 'duties.' The affidavit to the complaint, sworn to by the plaintiffs, recites 'that they have read the above and foregoing complaint, and that all matters and things stated therein are true and correct * * * that unless an injunction is issued as prayed for in said complaint, without notice and without bond, great and irreparable harm and injury will result to them.'
The court below, on the same day the complaint was filed, issued the temporary injunction prayed for, without notice and without bond. Defendants then filed a motion to dissolve the temporary injunction and to dismiss the complaint. This motion was denied and defendants have taken this interlocutory appeal from that order. The plaintiffs have not appeared here, by brief or otherwise.
It is the defendants' theory that the complaint filed herein was wholly insufficient under Chapter 69, Illinois Revised Statutes, 1959 and that the granting of the temporary injunction was in direct and positive violation of Section 3, Chapter 69 above referred to; that the complaint and affidavits for the issuance of the temporary injunction contain no facts showing that the rights of the plaintiffs would be unduly prejudiced if the injunction were not issued immediately and without bond; that the allegation of the complaint that plaintiffs would be unduly prejudiced if a notice of application for injunction were required to be given is a mere conclusion not supported by any alleged specific facts; and that the injunction was improvidently issued without bond as required by statute.
On the subject of notice, the statute, (Ill.Rev.Stat.1961, chap. 69, par. 3,) provides that a temporary injunction shall not be granted without notice unless it appears 'from the complaint or affidavit accompanying the same, that the rights of the plaintiff will be unduly prejudiced if the injunction is not issued immediately or without notice.' The cases are clear that the pleadings must contain an allegation of facts from which the court can infer the need for protecting the plaintiff from undue prejudice which would arise if notice to the adverse party were required. A mere statement of a conclusion substantially in the words of the statute is insufficient. Facts upon which the conclusion may be inferred is a prerequisite before the injunction may issue without notice. See, for example, Stenzel v. Yates, 342 Ill.App. 435, 96 N.E.2d 813; Tri Square Realty Corp. v. Bressler, 17 Ill.App.2d 336, 149 N.E.2d 798; American Dixie Shops v. Springfield Lords, 8 Ill.App.2d 129, 130 N.E.2d 532; Brown v. City of Sullivan, 350 Ill.App. 400, 113 N.E.2d 208; Hawkins v. Guerdon, 351 Ill.App. 515, 115 N.E.2d 441.
Regarding the furnishing of a bond, the statute, (Ill.Rev.Stat.1961, chap. 69, par. 9,) provides that the plaintiff shall give bond in such penalty as the court requires unless 'for good cause shown, the court or judge is of opinion that the...
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