Roberts v. Fahs

• Court: Illinois Supreme Court
• Writing for the Court: WALKER
• Citation: Roberts v. Fahs, 36 Ill. 268, 1864 WL 3144 (Ill. 1864)
• Decision Date: 30 November 1864
• Parties: MARSHALL O. ROBERTSv.JOHN FAHS AND CATHARINE FAHS.

36 Ill. 268

1864 WL 3144 (Ill.)

MARSHALL O. ROBERTS

v.JOHN FAHS AND CATHARINE FAHS.

Supreme Court of Illinois.

November Term, 1864.

ERROR to Circuit Court of Wabash County.

In this case, the court below, in assessing the damages sustained by reason of the suing out of an injunction by the trustees of the Ohio and Mississippi railroad company, restraining the sale of certain personal property upon execution issued upon a judgment against said company, included in the amount assessed, the principal, interest and costs of the said judgment, the collection of which had been enjoined; and the correctness of the action of the court in making such assessment is the question presented upon error.

William Homes, for plaintiff in error.

J. G. Bowman, for defendants in error.

WALKER, C. J.

It is insisted that the act of 1861 (Sess. Laws, 133) does not authorize the court, on the dissolution of an injunction, in assessing damages, to include the judgment enjoined. That act declares that in all cases where an injunction is dissolved, the court, after dissolving the same, and before finally disposing of the case, if the party claiming damages by reason of the injunction having been issued shall suggest in writing the nature and amount thereof, shall hear evidence and assess such damages as the nature of the case shall require, and to equity appertains, to the party damnified, and execution may issue for the collection of the same. This section is broader in its scope than the eleventh section of the chapter entitled “ Ne exeat and Injunctions.” That section authorizes the court to assess damages on the amount of a judgment stayed by injunction upon its dissolution, but limits the amount of the damages to not more than ten per cent. on the sum improperly enjoined.

It will be observed, that the act of 1861 embraces all cases on the dissolution of an injunction, whatever may be the subject matter of the bill, whilst the former act only embraces the injunction of money judgments. The question which is presented by this record then is, whether the latter act repeals the former. If it is repealed, it must be because the provisions of the two acts conflict, as it is not repealed in terms. Damages may be assessed by the terms of either act: by the former, on a money judgment, an amount not exceeding ten per cent.; whilst under the latter act, such sum as the nature of the case may require and as shall appertain to equity. Then does the nature of such a case, or the principles of equity require that a greater sum than ten per cent. on the sum improperly enjoined shall be assessed? When the former act was adopted, the legislature evidently supposed that ten per cent. was all that equity could require, as they limited it to that sum. Nor do we perceive that the latter act contained any provision which indicates that they supposed that such an amount was insufficient or inequitable. So far from the two provisions being repugnant, they seem to be entirely consistent.

In adopting the act of 1861, it was no doubt to provide for the assessment of damages in cases of the dissolution of injunctions relating to other matters than judgments. They were already provided for, and are consequently not referred to in that enactment. Had they designed to change the measure of damages...