Nestor Johnson Mfg. Co. v. Goldblatt
| Decision Date | 31 October 1938 |
| Docket Number | Gen. No. 39751. |
| Citation | 297 Ill.App. 190,17 N.E.2d 371 |
| Parties | NESTOR JOHNSON MFG. CO. v. GOLDBLATT ET AL. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Cook County; Walter T. Stanton, Judge.
Suit by the Nestor Johnson Manufacturing Company against Morris Goldblatt and another to enjoin alleged unfair competition, wherein defendant sought damages resulting from the wrongful issuance of a temporary injunction. From an adverse decree, the defendants appeal.
Affirmed.
McSURELY, P. J., dissenting. Pritzker & Pritzker, Harvey L. Hanson, and Richard Weinberger, all of Chicago, for appellants.
Zane, Trueblood & Johnson, Franklin D. Trueblood, and Craig R. Johnson, all of Chicago, for appellee.
By suggestions in writing filed May 15, 1933, in a proceeding auxiliary to the original suit, after final decree therein, defendants claimed damages for solicitors' fees necessarily rendered by reason of the wrongful issuance of a temporary injunction. Complainant answered. There was a reference, a report, with objections and exceptions thereto overruled, and April 14, 1937, a decree disallowing and dismissing the claims. Hence this appeal.
The original suit, filed December 19, 1927, was for alleged malicious conspiracy to injure the trade of complainant by unfair competition. The relief prayed that defendants pending the suit be enjoined temporarily and upon the hearing perpetually. The temporary injunction issued the day the bill was filed.
The case is before this court for the third time. First, in Nestor Johnson Manufacturing Co. v. Goldblatt et al., 250 Ill.App. 644, the complainant appealed from an order entered December 27, 1927, dismissing the bill on complainant's motion. Prior thereto, on December 23, the court, on motion of defendants, dissolved the temporary injunction. The order of dismissal was entered and the appeal therefrom taken by complainant in conformity with the practice approved in Williams v. Chicago Exhibition Co., 188 Ill. 19, 58 N.E. 611, and other cases. This court held that the bill of complaint disclosed prima facie a case of conspiracy to carry out a scheme of unfair competition “remediable by injunction,” reversed the decree of December 27 and remanded the cause with directions for a rule on defendants to plead or answer and for a trial on the merits. December 20, 1928, the superior court reinstated the temporary injunction and it was continued in force until extinguished by another final decree entered January 22, 1931. Pending these proceedings defendants again moved to dissolve the temporary injunction. The motion was denied “until the hearing of the evidence on bill and answer is concluded.” There was no further hearing on that motion. The cause was referred to a master who took the evidence and reported against the complainant and recommended that the bill be dismissed for want of equity. Objections overruled by the master stood as exceptions, and the court sustaining these exceptions entered a decree in favor of the complainant on the merits January 22, 1931. This decree granted to the complainant a permanent injunction. Neither the report of the master nor the decree of the court referred to the temporary injunction. The second appeal to this court was by defendants from this decree. The decree was reversed and the cause remanded with directions to dismiss the bill for want of equity. Nestor Johnson Mfg. Co. v. Goldblatt, 265 Ill.App. 188. Complainant petitioned the Supreme court for writ of certiorari, which was denied. 265 Ill.App. XIV.
April 25, 1933, pursuant to mandate from this court a final decree was entered in favor of defendants. This decree set aside the former decree of January 22, 1931, and directed “that the injunction heretofore ordered and issued by this court against each of the defendants herein be and the same is hereby dissolved” and the bill of complaint dismissed for want of equity, reserving jurisdiction to pass upon the questions of damages.
May 15, 1933 thereafter, the defendants Goldblatt and Planert filed their amended and supplemental suggestions. Goldblatt claimed $17,000 for solicitors' fees “in procuring a dissolution of the injunction,” $310.88 for printing briefs and arguments used in the two appeals, and $10,000 for loss of profits during the period the temporary injunction was in force, a total of $27,310.88. Defendant Planert claimed $9,477.55 “for the reasonable fees and charges of its solicitors and counsel,” $803.42 for charges of printers for abstracts and briefs, for court reporters and copies of papers used in and about procuring the dissolution of the injunction, and $187.50 mentioned in the original suggestion of damages, a total of $10,468.47.
The complainant filed separate answers denying the right of either to recover the damages claimed. The cause was referred to a master who took the evidence and in conformity with it found the value of the respective items for all services rendered by attorneys for the defendants in connection with the case. The master, however, concluded and reported that the decision of the Appellate Court on the first appeal that the temporary injunction had been properly issued became the law of the case; that at the time of the second appeal the temporary injunction had been superceded by and merged in the permanent injunction; that no dissolution of the temporary injunction was involved in the second appeal. The master held that the statutory provision for the assessment of damages in an injunction suit is limited to damages arising out of the dissolution of the temporary injunction and has no application to services performed in the defense of the suit on the merits; that the services rendered by solicitors for the defendants were rendered in connection with the trial of the entire case on all issues involved, and that defendants were not entitled to recover. The master recommended the suggestions should be dismissed and a decree to that effect was entered by the chancellor, as already stated.
No proofs were offered before the master as to the value of services limited to obtaining the dissolution of the temporary injunction as distinguished from services directed to the defense of the suit on the merits, and no evidence of damage to the business of defendants was offered. The question for decision is whether in a case where the sole relief asked is a permanent injunction with a preliminary injunction granted pendente lite, and a decree upon the merits has been entered in favor of the defendants, the defendants under the statute are entitled to recover sums expended for solicitors' fees for services rendered in the defense of the case on the merits and in subsequent appeals. The question requires an interpretation of Section 12 of the Injunctions act (see Ill.State Bar Stats.1937, chap. 69, § 12, p. 1772). It is:
A careful analysis of the section precludes the interpretation for which defendants contend. The section consists of a single sentence somewhat involved, but the subject of the sentence is the word “court”, which the predicate states shall assess damages such as the nature of the case may require. The various phrases and clauses of the sentence limit the action of the court in many ways. First, as stated in the first paragraph, “in all cases where an injunction is dissolved.” The adjective “all” modifies the noun “cases”, and the phrase “all cases” is limited by the clause “where an injunction is dissolved by a court of chancery in this state.” Second, the assessment of damages as to time is to be made “after dissolving such injunction”; third, “before finally disposing of the suit”; fourth, “upon the party claiming damages by reason of such injunction”; fifth, “suggesting, in writing, the nature and amount thereof”; sixth, “shall hear evidence”; seventh, the damages given are to be “as the nature of the case may require”; and eighth, “to the party damnified by such injunction.” “Such injunction” refers evidently to the injunction which is dissolved. It is apparent from this analysis that it was not the intention of the legislature to grant authority to the court to assess damages except in all cases where an injunction issued and had been dissolved, and that the damages are limited to such as the party or parties have sustained by reason of “such injunction.”
The case of Lambert v. Alcorn, 144 Ill. 313, 33 N.E. 53,21 L.R.A. 611, is decisive. There the complainant filed a bill to restrain defendant from putting in a system of drains on his own land and extending the same across adjoining land. The defendant answered denying the equity of the bill. Upon the filing of the bill a temporary injunction was issued which as to a part of the real estate involved was dissolved upon the hearing and damages assessed pursuant to this section of the statute. Complaint was made of this assessment upon appeal. The court said that it was the manifest intention of the trial court to assess as damages the entire cost of defending the suit to the extent to which it was successful; that the solicitors' fees shown were for the entire services of the solicitors in defending the suit; that there was evidence that a motion for dissolution had been made but never decided on account of the illness of the judge. The opinion points out...
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Nestor Johnson Mfg. Co. v. Goldblatt
...resulting from the wrongful issuance of a temporary injunction. Decree for the plaintiff was affirmed by the Appellate Court, 297 Ill.App. 190, 17 N.E.2d 371, and defendants were given leave to appeal. Affirmed.Appeal from First Division Appellate Court, First District, on Appeal from Super......