Crown Bldg. Corp. v. Monroe Amusement Corp.

• Decision Date: 29 June 1945
• Docket Number: Gen. No. 43419.
• Citation: Crown Bldg. Corp. v. Monroe Amusement Corp., 326 Ill.App. 430, 62 N.E.2d 32 (Ill. App. 1945)
• Parties: CROWN BLDG. CORPORATION v. MONROE AMUSEMENT CORPORATION.
• Court: Appellate Court of Illinois

326 Ill.App. 430

62 N.E.2d 32

CROWN BLDG. CORPORATION

v.MONROE AMUSEMENT CORPORATION.

Gen. No. 43419.

Appellate Court of Illinois, First District, Third Division.

June 29, 1945.

Appeal from Superior Court, Cook County; John P. McGoorty, Judge.

Suit by Crown Building Corporation against Monroe Amusement Corporation to enjoin defendant, the lessee of a theater, from removing a compressor unit and projector machines when vacating the premises after cancellation of the lease. The superior court, without notice to defendant, ordered the issuance of an injunction, and later denied defendant's motion to dissolve the injunction order, and defendant appeals.

Orders reversed.Isaac M. Mills and Sonnenschein, Berkson, Lautmann, Levinson & Morse, all of Chicago (Isaac E. Ferguson and Morton Lane, both of Chicago, of counsel), for appellant.

Soelke & Keehn, of Chicago, for appellee.

BURKE, Presiding Justice.

On Monday, February 26, 1945, the Crown Building Corporation filed a verified complaint in chancery in the Superior Court of Cook County against Monroe Amusement Corporation, alleging that defendant leased the theatre at 59 West Monroe Street, Chicago, for the term beginning September 1, 1940, and ending August 31, 1945; that plaintiff on December 1, 1944, purchased the fee of the real estate and became the assignee of the lessor; that plaintiff served a notice of cancellation on defendant, demanding possession of the premises March 5, 1945; that defendant received the notice of cancellation and informed plaintiff in would surrender possession of the premises on March 5, 1945; that defendant expressed willingness to sell to plaintiff a 50 horse power compressor unit with cooling coils, which was used to cool the demised premises, and two projector machines; that defendant had asserted that if unable to sell this equipment to plaintiff, it would remove the same upon surrendering possession; that on February 21, 1945, defendant informed plaintiff that the compressor had been dismantled and was about to be removed; that the compressor unit became the property of the lessor under the terms of the lease, on the termination thereof, because it was an essential part of the air cooling and ventilating system; that the projectors were essential to the operation of the theatre; that by reason of the war it would be practically impossible ‘except at an exorbitant price,’ to replace the compressor unit and projectors; that the compressor unit was installed pursuant to defendant's obligation under the lease to expend $10,000 or more in alterations and improvements; and that on information and belief defendant had no substantial assets other than its leasehold, and that a money judgment against it would be uncollectible. Plaintiff prayed that defendant, its agents, employees and attorneys be enjoined from dismantling, disconnecting or removing any part of the 50 horse power compressor unit, ventilating and air cooling system or the projectors, and from damaging them; that the defendant be required to deliver to plaintiff upon the expiration of the lease on March 5, 1945 the compressor unit and projectors; that if defendant ‘has already removed said compressor unit and projectors, or parts thereof,’ it would be required to return the same to the premises, and for other relief. On Tuesday, February 27, 1945, the court, without requiring notice to defendant, entered an order directing the issuance of an injunction restraining the defendant and its agents from removing from the premises the compressor unit and projectors and from selling or disposing of them. The court required that plaintiff give bond in the sum of $5,000, which was done, and the injunction issued. On February 28, 1945, defendant's attorneys served notice on plaintiff's attorneys that they would appear before the chancellor on March 2, 1945, and move to dissolve ‘and vacate’ the injunction order. On March 2, 1945, a written motion ‘to dissolve and vacate’ the injunction order was presented. This motion adequately presented the points subsequently urged before the chancellor and argued in the briefs filed here. On March 2, 1945, the court overruled defendant's motion and it perfected an appeal to this court.

Defendant maintains that the court erred in issuing the injunction without notice. Plaintiff insists that the issuance of the injunction without notice was within the discretion of the court under the facts alleged in the complaint and in the supporting affidavit for the purpose of preserving the status quo until the case could be heard on the merits. The complaint states that on February 10, 1945 defendant's attorney telephoned plaintiff's attorney that his client intended to comply with the cancellation notice by turning over possession of the premises on or about March 5, 1945; that defendant intended before surrendering possession of the theatre to sell or otherwise dispose of the 50 horse power compressor unit and the two projectors, but that defendant was willing to sell the compressor unit to plaintiff for $15,000 and the projectors for $1,100 each; and that the apparatus and machines mentioned were the property of defendant and did not on the termination of the lease become the property of the lessor. The complaint further alleges that on February 16, 1945 certain agents of plaintiffs were shown the compressor unit by Mr. Edward Trinz, general manager of the theatre, and were told by him that defendant was negotiating with certain parties not named for the sale of the unit, and that if it was not sold by March 5, 1945 it would be dismantled and removed from the premises; that on February 21, 1945 defendant's attorney stated over the telephone to plaintiff's attorney that the compressor had been dismantled and would be removed from the premises; that the projectors would also be removed from the premises, and also that the projectors would be replaced with certain other projectors previously discarded as obsolete.

Sec. 3, Ch. 69, Ill.Rev.Stat.1943, reads:

‘No court or judge shall grant an injunction without previous notice of the time and place of the application having been given to the defendants to be affected thereby, or such of them as can conveniently be served, 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.’

Where a preliminary injunction is issued without notice, in a case where a notice should have been given, it is the duty of this court aside from any other question and without reference to the merits of the case as made by the averments of the complaint, to reverse the order denying the motion to dissolve the injunction upon that ground. Koelling v. Foster, 150 Ill.App. 130;Kessie v. Talcott, 305 Ill.App. 627, 27 N.E.2d 857. The apparent purpose of requiring a notice is to give defendant an opportunity to show that the injunction should not issue. In Brin v. Craig, 135 Ill.App. 301, at page 306, this court said:

‘This court has spoken many times in no uncertain voice in condemnation of the practice of granting an injunction without notice unless it is made clearly and indisputably to appear from facts recited and verified,...