Fisher v. Tribby

• Decision Date: 31 December 1879
• Citation: 5 Bradw. 335,5 Ill.App. 335
• Parties: ISAAC FISHER ET AL.v.JOHN H. TRIBBY.
• Court: United States Appellate Court of Illinois

5 Ill.App. 335

5 Bradw. 335

ISAAC FISHER ET AL.

v.JOHN H. TRIBBY.

Appellate Court of Illinois, Second District.

December Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria county; the Hon. J. W. COCHRAN, Judge, presiding. Opinion filed December 19, 1879.

Mr. S. S. PAGE and Mr. S. V. JONES, for appellants; that complainants were entitled to an injunction, and the court erred in dissolving it, cited Weaver v. Poyer, 79 Ill. 417; Beauchamp v. Kankakee County, 45 Ill. 274.

No damages should have been allowed on dissolution of injunction: Brownfield v. Brownfield, 58 Ill. 152; Russell v. Rogers, 56 Ill. 176.

The damages allowed were excessive: Rev. Stat. 1877, 556; Roberts v. Fahs, 36 Ill. 268; Jevne v. Osgood, 57 Ill. 340; Collins v. Sinclair, 51 Ill. 328.

Messrs. HOPKINS & MORRON and Mr. GEO. A. WILSON, for appellee.

PLEASANTS, J.

This is an appeal from a decree for damages assessed upon dissolution of an injunction.

The bill sets forth that appellee, Tribby, some years ago, recovered a judgment in the Circuit Court of Woodford county, against appellants, complainants, and others, which was reversed and remanded by an order of the Supreme Court dated January 22, 1872; that plaintiff in said suit delayed filing said order in the Circuit Court until May 11, 1874, and then filed the same and docketed the cause without notice; that defendants entered their motion to strike said cause from the docket, but the presiding judge, having been of counsel, changed the venue to Peoria, where said motion, after full argument and consideration, was allowed and the cause ordered stricken off; that the clerk in entering said order upon the record, by error and through mistake added the words “with leave to reinstate,” no such leave having been in fact given; that the defendants were informed by their counsel and believed that said cause was “ended forever,” but that the plaintiff afterwards, without notice to defendants or their attorneys, caused the same to be again placed upon the docket, empanelled a jury to try it, and on Oct. 9, 1877, obtained a verdict against the defendants for $706.28, on which judgment was entered; of which proceedings neither the defendants nor their attorneys, all residing in another county, had any notice until the following term of said court and when execution issued upon said judgment on the 7th day of Dec., 1877, was in the hands of the sheriff of Woodford county, who is threatening to levy the same; that they thereupon, on Jan. 30, 1878, entered their motion to amend the record, vacate said judgment and recall said execution, which motion was overruled because the term at which said judgment was rendered had expired; that for the reason before stated they did not and could not have any bill of exceptions filed in said cause, nor make any motion in arrest of judgment or otherwise therein, and so their remedy at law was lost. The prayer was for an injunction to restrain appellee Bullock (the sheriff of Woodford county) from levying said execution, or, if he had levied, from taking any further steps thereunder, and appellee Tribby (plaintiff in the execution) from enforcing or attempting to enforce or collect said judgment, “and that upon the final hearing hereof the court will enter a decree finding said judgment and the proceedings thereon null and void; and will make said injunction a perpetual one, forever enjoining the collection of said judgment, and will grant such other and further relief as to equity and justice shall be meet, etc.”

The bill duly sworn to was presented to the judge on the 4th day of March, 1878, at 4 o'clock, P. M., pursuant to notice given on the same day, and an order then made postponing the hearing until the 7th, and restraining the defendants in the meantime from proceeding under the execution or judgment.

On the 7th the application was heard and a writ of injunction allowed, which was issued and served upon Tribby on the 13th.

On the 16th the defendants entered their motion to dissolve said injunction for want of equity, &c.; but nothing appears to have been done to bring it on for hearing until the 5th of September, when said cause coming on upon the motion of complainants for leave to amend their bill so as to pray for a new trial it was ordered, adjudged and decreed that said motion be allowed, and that the “complainants in this cause, the same being the defendants in the original cause of Tribby v. Harbers et al., shall file their amended bill in this cause, praying for a new trial upon the merits, as of this day. And that said cause of Tribby v. Harbers shall be placed upon the com mon law docket of this court for trial upon its merits at the next October term thereof,” which amendment, striking out the prayer for injunction and inserting one in lieu thereof for a new trial of said original cause upon its merits and that the same be placed on the docket for such trial at the next October term of said court, was then made and filed. And on the same day, upon the motion of defendants, it was also ordered “that the said injunction be and the same is hereby dissolved with costs.”

Four days thereafter, on the 9th, defendants filed their suggestion of damages, which on the 13th...