Hall v. Orlikowski Const. Co.
| Decision Date | 27 November 1974 |
| Docket Number | No. 74--262,74--262 |
| Citation | 321 N.E.2d 23,24 Ill.App.3d 60 |
| Parties | Robert B. HALL and Joyce Hall, Plaintiffs-Appellees, v. ORLIKOWSKI CONSTRUCTION CO., a corp., and Bruno Orlikowski, Ind. & d/b/a Orlikowski Construction Co., et al., Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Reid, Ochsenschlager, Murphy & Hupp, P. Scott Courtin, Aurora, for defendants-appellants.
Robert A. Chapski, Elgin, Lord, Bissell & Brook, Chicago, for plaintiffs-appellees.
The defendants, Orlikowski Construction Company, a corporation and Bruno B. Orlikowski, individually and d/b/a Orlikowski Construction Company (hereinafter referred to as Orlikowski) have filed an interlocutory appeal pursuant to Ill.Rev.Stat.1971, ch. 110A, par. 307(a)(1), from orders of the trial court granting and refusing to dissolve a preliminary injunction. The injunction order restrained the Telegraph Savings and Loan Association (hereinafter referred to as the Association) and Old Republic Insurance Company (hereinafter referred to as the Insurance Company), additional defendants, from turning over insurance proceeds to Orlikowski, a contractor, in payment for repair of damages to the plaintiffs' home from a fire.
The injunction order was issued on the basis of a complaint which the plaintiffs filed on April 26, 1974, against Orlikowski, the Insurance Company and the Association. The plaintiffs, in alleging a breach of contract on the part of Orlikowski sought to have the contractor respond in damages and also asked that the Insurance Company and the Association be restrained from delivering to Orlikowski the proceeds of an insurance policy to which the plaintiffs were entitled as the result of fire damage to their home.
The complaint alleged that the plaintiffs entered into a written contract with Orlikowski to repair and remodel their home in a good and workmanlike manner for the sum of $15,900, and that Orlikowski has refused to adequately repair the premises by reason of which the plaintiffs have been damaged in the sum of $20,000. The complaint stated that as a result of Orlikowski's faulty workmanship and his refusals to remedy the situation, the plaintiffs have refused to authorize the delivery to him of a check in the amount of $15,900 which the defendant Insurance Company, as the plaintiffs' insurer, deposited with the defendant Association. And that all of the defendants have acted in concert to compel the plaintiffs to turn over the check to Orlikowski. The prayer of the complaint was for a judgment against Orlikowski in the sum of $20,000 and costs and for the Insurance Company and the Association to be restrained from paying Orlikowski until further order of the court.
On May 16, 1974, the injunction was granted by a judge of the Kane County Circuit Court upon the allegations in the complaint. The order directed the Association and the Insurance Company to deposit with the clerk of the Circuit Court the insurance proceeds in question.
It appears that Orlikowski was personally present but without counsel when the injunction order was issued, and he was not served with the summons on the complaint until seven days later.
After the proceeds were deposited as directed, Orlikowski moved to dissolve the injunction and also moved for a change of venue on the ground of the prejudice of the trial judge. In addition, the Insurance Company and the Association moved to have the complaint dismissed against them for failure to state a cause of action. The change of venue was granted on July 12, 1974 and the other motions were heard before the trial judge below on reassignment. He dismissed the Association and the Insurance Company from the case but denied Orlikowski's motion to dissolve the injunction.
Orlikowski contends that the allegations of the complaint are insufficient to warrant the relief sought. In particular, the defendants allege that no emergency has been shown to exist and that the plaintiffs have an adequate remedy at law by an action on the contract. In addition, Orlikowski contends that the court erred in issuing the injunction upon an unverified complaint.
The plaintiffs contend that Orlikowski lacked standing to challenge the issuance of the injunction because it was directed only against the Association and the Insurance Company. And they further argue that because the solvency of the defendants cannot be guaranteed at the time of the hearing on the merits, the temporary injunction was properly issued to maintain the status quo. In addition, they argue that the necessity of a verified complaint is not a strict procedural requirement.
We find no merit in plaintiffs' first...
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