Miollis v. Schneider

• Decision Date: 29 December 1966
• Docket Number: Gen. No. 66--132
• Citation: 77 Ill.App.2d 420,222 N.E.2d 715
• Parties: Raymond MIOLLIS, d/b/a Natural Cheese Company, Appellee, v. Warren D. SCHNEIDER and James B. Hillman, d/b/a James Hillman Cheese Factory, Appellants.
• Court: United States Appellate Court of Illinois

Page 715

222 N.E.2d 715

77 Ill.App.2d 420

Raymond MIOLLIS, d/b/a Natural Cheese Company, Appellee, v. Warren D. SCHNEIDER and James B. Hillman, d/b/a James Hillman Cheese Factory, Appellants.

Gen. No. 66--132.

Appellate Court of Illinois, Second District.

Dec. 29, 1966.

George H. Schirmer, Jr., Freeport, Rothbart, Stein & Moran, Chicago, for appellants.

Eckert, Schmelzle & Eckert, Freeport, Thomas Hart Fisher, Chicago, for appellee.

DAVIS, Presiding Justice.

This appeal involves the propriety of orders for the issuance of temporary injunctions and the denial of the petition of the defendants to vacate such orders. The appeal attacks the injunction orders from both the procedural and substantive aspects.

On October 27, 1966, plaintiff filed his unverified complaint asking that temporary injunction issue against the defendant, Warren D. Schneider, herein called Schneider, without notice and without bond, restraining him from further violation of his employment contract with the plaintiff, dated March 1, 1946, and from any further connection with James Hillman Cheese Factory where Schneider was employed; and that such preliminary injunction be made permanent. On said date, the court ordered that temporary injunction issue 'restraining * * * the defendant * * * from any further connection or employment * * * with James Hillman Cheese Factory * * * or with any other company manufacturing or curing products of Natural Cheese Company.' This injunction issued without notice and without bond.

On October 31, 1966, Schneider filed a motion to dissolve this injunction in that the complaint was not verified or supported by affidavit and for other reasons. This motion was set for hearing on November 1. The record indicates that the court dissolved this injunction on October 31 and granted plaintiff leave to file an amended complaint within ten days.

The plaintiff filed an amended complaint, which was verified, on November 2, seeking the same relief, and on said date, without notice to Schneider, the court again entered an injunction order similar to that entered on October 27 and plaintiff filed bond in the sum of $1,000.

On November 2, plaintiff filed a motion, without notice to Schneider, for leave to add James Hillman, d/b/a Hillman Cheese Factory, herein called Hillman, as a party defendant, and for leave to file a second count to the amended complaint. This motion was granted on November 7 and verified Count II of the amended complaint was filed, and therein plaintiff asked, among other things, that a temporary injunction issue immediately and without notice, restraining Hillman from any further use of secret trade processes of the plaintiff. On said date, the court, without notice to Schneider or Hillman, issued such injunction and the plaintiff filed bond in the sum of $1,000.

On November 7, Schneider filed a motion to vacate the injunction order of November 2, and on November 9, Schneider and Hillman filed a motion to dissolve the respective temporary injunctions issued against them on November 2 and November 7. The main thrust of the motions was that the injunctions issued without notice in violation of section 3 of the Injunction Act (Ill.Rev.Stat.1965, ch. 69, par. 3) which provides:

'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 effected 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.'

The motions also charged that the complaint failed to state facts warranting the issuance of the injunctions; that the writ cannot properly issue upon allegations which are mere conclusions; and that the plaintiff failed to file a copy of any agreement between Hillman and himself and failed to set forth what processes, secrets, formulas, methods of keeping and maintaining cultures, etc., and other ideas used in connection with curing and making of cheese, or various types thereof, are his sole property. These motions, which stated that both Schneider and Hillman, as well as their attorney, resided in Stephenson County and were conveniently available for service, were set for hearing on November 14, and notice thereof was served on the plaintiff.

On November 9, the plaintiff served notice on the defendants that he would appear on November 14 and ask the court to enter an order reaffirming the injunctions already issued, which notice recited that it was served in compliance with section 3 of the Injunction Act. On November 14, the plaintiff filed an affidavit in support of his amended complaint.

We will first consider the propriety of the injunction orders from the procedural viewpoint, and in so doing will recur to some of the fundamental considerations which should be observed in connection with the issuance of injunctions, and particularly those designated as temporary or interlocutory.

An injunction is an equitable remedy, frequently described as the strong arm of equity--an extraordinary remedy to be used sparingly with judicial restraint and due continuence, and only in a clear and plain case. Vulcan Detinning Co. v. St. Clair, 315 Ill. 40, 43, 44, 145 N.E. 657 (1924); 21 I.L.P. Injunctions, §§ 2, and 4; 28 Am.Jur., Injunctions, sec. 12.

A temporary injunction is granted before the hearing of the case on its merits for the purpose of preventing a threatened wrong or further perpetration of an injury; its purpose is not to determine any controverted right or to decide the merits of the case. 21 I.L.P., supra; 28 Am.Jur., supra.

In Town of Cicero v. Weilander, 35 Ill.App.2d 456 (1962), in considering this subject, the court stated at page 468, 183 N.E.2d 40, at page 47:

'Ordinarily a temporary injunction is issued for the purpose of maintaining the status quo, and it may properly issue wherever questions of law or fact to be ultimately determined are grave and difficult and if the injury to the moving party will be immediate, certain and great if it is denied, while the loss or inconvenience to the opposing party will be comparatively small and insignificant if it is granted. Puterbaugh, Chancery Pleading and Practice, vol. 2 sec. 626 (7th ed); O'Brien v. Matual, 14 Ill.App.2d 173, 144 N.E.2d 446.'

The court further pointed out that since a temporary injunction is a drastic remedy, it should be granted only under extraordinary circumstances; and that a temporary injunction which enjoins a corporate defendant from continuing its business in the ordinary course thereof, certainly did not preserve the status quo.

The law does not favor granting injunctions without notice and, since injunction is an extraordinary remedy, an injunction without notice is most drastic and should only issue under extreme circumstances. Streamwood Home Builders, Inc. v. Brolin, 25 Ill.App.2d 39, 43, 165 N.E.2d 531 (1960); Kelrick v. Koplin, 19 Ill.App.2d 301, 153 N.E.2d 481 (1958). In Streamwood, supra, in considering the situations in which temporary injunction may properly issue without notice, the court stated at pages 43 and 44 of 25 Ill.App.2d, at page 534 of 165 N.E.2d:

'The circumstances countenanced by the courts have been in very restricted areas, such as where the facts of the case, or the history of the parties, disclosed that the giving of notice would result in accelerating the very act sought to be enjoined, or where the act to be enjoined was either taking place or would be undertaken or completed in the time required agreement between C. E. Zuercher & Co., 281 Ill.App. 548; Mitchell v. Mitchell, 10 Ill.App.2d 437, 135 N.E.2d 109; Atkinson Trust & Sav. Bank v. DeRoo, 332 Ill.App. 251, 75 N.E.2d 46; 21 I.L.P., Injunctions, sec. 123, et seq.

'Notice to an adversary is elemental in our system of justice. Our courts of review have insisted upon chancery courts scrupulously observing the fundamental right of a party to be informed of the injunctions proposed against him so that he may be present, if he wishes, to defend himself. Skarpinski v. Veterans of Foreign...