Kirchenberg v. Chicago Transit Authority

• Decision Date: 29 June 1973
• Docket Number: No. 58482,58482
• Parties: Donald KIRCHENBERG et al., Plaintiffs-Appellants, v. CHICAGO TRANSIT AUTHORITY, a municipal corporation, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 482

300 N.E.2d 482

13 Ill.App.3d 184

Donald KIRCHENBERG et al., Plaintiffs-Appellants, v. CHICAGO TRANSIT AUTHORITY, a municipal corporation, et al Defendants-Appellees.

No. 58482.

Appellate Court of Illinois, First District, Fifth Division.

June 29, 1973.

Martin J. Freed, Dean A. Dickie, Chicago, for plaintiffs-appellants.

James G. O'Donohue, John Devine, Norman J. Barry, Chicago, for defendants-appellees.

ENGLISH, Justice.

On January 12, 1973, plaintiffs filed both a Complaint and an Amended Complaint by which they sought 'a temporary restraining order, preliminary injunction and permanent injunction' to restrain defendants from replacing with diesel busses certain electric trolley busses and from dismantling the supporting electric equipment therefor. On the same day, without notice of record to defendants, plaintiffs presented to the court their written 'Motion for Temporary Restraining Order,' which, by order of the same date, was denied. On January 15, plaintiffs filed their Notice of Appeal from said order.

When briefing was completed, the cause was set for oral argument, and at that time this court indicated to the parties its opinion that the order was not appealable, but that further study would be given to the question, with an opinion to follow.

We are still of the same mind. There can be no question but that the order appealed from is not a final judgment appealable as a matter of right under Article VI, Section 6 of the Illinois constitution, S.H.A. Appealability must therefore arise, if at all, from the authority lodged in the Supreme Court by the same section to 'provide by rule for appeals to the Appellate Court from other than final judgments of Circuit Courts.' Rule 307 is the rule which has been adopted by the Supreme Court to accommodate interlocutory appeals to this court as a matter of right. Ill.Rev.Stat.1971, ch. 110A, par. 307.

If there is any right in plaintiffs to appeal from the order in the instant case, it must be found in subparagraph (a)(1) of Rule 307 which provides for an interlocutory appeal from an order 'granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.'

As amended in 1967, the Injunction Act (Ill.Rev.Stat.1971, ch. 69, pars. 1, 3 and 3--1), refers to three distinct types of orders: an 'injunction' (often referred to in the cases as a 'permanent injunction'), a 'preliminary injunction,' and a 'temporary restraining order.' The last was a new breed of order, added by the amendments of 1967, and theretofore without any recognizable counterpart in the case law. That plaintiffs recognized the differences among these three kinds of orders is clear from the prayer of their complaint, quoted in part in the first paragraph of this opinion, in which...