Kolin v. Leitch
| Decision Date | 02 July 1953 |
| Docket Number | Gen. No. 45861 |
| Citation | 113 N.E.2d 806,351 Ill.App. 66 |
| Parties | KOLIN et al. v. LEITCH et al. |
| Court | United States Appellate Court of Illinois |
Goldberg, Devoe, Brussell & Shadur, Chicago, Abraham W. Brussell, Milton I. Shadur, and Abner J. Mikva, Chicago, of counsel, for appellant.
Hennessy, Lennon & King and Will A. Kelly, Chicago, for defendants-appellees.
August 31, 1950 plaintiffs filed an amended complaint against the members of the board of directors of St. George School for Girls, a corporation not for profit, hereinafter called 'the school,' and John Leitch, the successor trustee of the George J. Williams charitable trust. The amended complaint prays for a declaration of the rights of the plaintiffs, an injunction restraining defendants from closing the school, the removal of the directors and trustee of the Williams Trust, appointment of a successor trustee with authority to use the principal of the trust to pay the school's deficits, and the appointment of a receiver for the school.
September 1, 1950 a temporary injunction was issued, restraining the directors of the school from closing the school and directing them to accept pupils for enrollment subject to certain conditions which are not material here. The issuance of the order for a temporary injunction fixed plaintiffs' bond at $5,000 and provided further that the sum of $6,000, which had theretofore been deposited by the plaintiffs with the Clerk of the Circuit Court, be accepted in lieu of a bond. November 10, 1950 defendants' motion to dissolve the temporary injunction was denied and, on the same day, on plaintiffs' motion, the school was made a party defendant. In an interlocutory appeal to this court the order denying defendants' motion to dissolve the temporary injunction was reversed, 343 Ill.App. 622, 99 N.E.2d 685.
Upon the dissolution of the temporary injunction the school filed a written suggestion of damages under the provisions of Chapter 69, Section 12, Illinois Statutes 1951, State Bar Edition. This suggestion of damages contains an itemized account of all the moneys alleged to have been expended and obligations incurred by the school in the dissolution of the temporary injunction, such as attorney's fees, court reporter's fees, court costs, costs of printing, filing and serving of abstracts on appeal, cost of printing appellants' brief and reply brief, and the operating loss sustained by the continued operation of the school during the period when the injunction was in force. The school asks that judgment be entered for the damages sustained and that an order be entered directing the Clerk of the Circuit Court to pay to the school such amount out of the funds remaining on deposit with him pursuant to the order of court, and for such other relief in the premises as equity may require. After a hearing, the trial court awarded damages against the plaintiffs and in favor of the school in the sum of $4,112.08. Plaintiffs appeal.
In the former appeal the school did not join with the other defendants.
Plaintiffs contend that the school cannot recover damages because it was not a party which sought dissolution of the temporary injunction. In support of their contention plaintiffs rely on Leonard v. Pearce, 271 Ill.App. 428. In that case it appears that one Froelich had an undivided interest in certain land covered by a lake, the use of which was temporarily enjoined. The other defendants made a motion to dissolve the injunction and upon its dissolution they were granted leave to file a suggestion of damages. The court held that because of Froelich's failure to file any motion to dissolve the injunction and suggestion of damages prior to the entry of the final decree, he could not recover. We think the facts of that case are readily distinguishable from those of the present case.
The school being a corporation acts only through its officers, and in its dealings with third persons the power of a corporation is lodged in its board of directors. Here, plaintiffs have recognized that the board of directors is the governing body of the school by making them all parties-defendant. Moreover, the money deposited by plaintiffs with the Clerk of the Circuit Court was for the use and benefit of the school. Under the circumstances shown by the record we think the school is the actual 'party damnified' within the meaning of Section 12 of the Injunction Act. The failure to join its name with the directors who acted for the school in moving to dissolve the temporary injunction does not in our opinion bar it from recovering the damages which it sustained.
Plaintiffs maintain that the school cannot recover attorney's fees because it failed to segregate the attorney's fees for services rendered on the dissolution of the injunction and fees earned for the defense on the merits of the case.
The rule seems well settled that a defendant may recover as damages, on dissolution of an injunction, the solicitor's fees which he has paid or become obligated to pay for services rendered in obtaining the dissolution of the injunction but not for those rendered in the general defense of the suit. Lambert v. Alcorn, 144 Ill. 313, 33 N.E. 53, 21 L.R.A. 611. The damages allowed by statute are only those sustained by reason of an improper and wrongful suing out of an injunction and the solicitor's fees can only extend to the motion to dissolve. Leonard v. Pearce, 271 Ill.App. 428.
In the instant case Will Kelly, attorney for the school and the other defendants, testified that the total time devoted to the motion for dissolution of the temporary injunction was 162 1/4 hours, and that a fair and reasonable charge for his services was $15 an hour. Another attorney also testified that the services Mr. Kelly rendered in connection with the dissolution of the injunction were reasonably worth $30 an hour. There was undisputed testimony that the school advanced costs amounting to $405.40. The evidence further shows that Kelly in testifying used a memorandum taken from the original records in his office; that he recited in detail...
To continue reading
Request your trial
-
Label Printers v. Pflug
...those rendered in the cause generally. (House of Vision, Inc. v. Hiyane (1969), 42 Ill.2d 45, 52, 245 N.E.2d 468; Kolin v. Leitch (1953), 351 Ill.App. 66, 72, 113 N.E.2d 806.) The defendant may recover damages for attorney fees if he has paid the fee or has become liable to pay the fees. (L......
-
Josephson v. Fremont Industries, Inc.
...fair market value at the time the wrongful restraint was imposed 'compared to the value at the time of sale.' See, Kolin v. Leitch, 351 Ill.App. 66, 113 N.E.2d 806. With respect to this, plaintiff testified that the equipment cost about $2,600 when acquired in the fall of 1961, was used for......
-
Global Contact Lens, Inc. v. Knight
...and thereby relieve himself of liability. The following statement by the Illinois Appellate Court, in Kolin v. Leitch, 351 Ill.App. 66, 113 N.E.2d 806, 809 (1953), succinctly describes the error of using book 'Damages recoverable for wrongful suing out of a writ of injunction must be such a......