The Western Union Tel. Co. v. the Pac.

• Decision Date: 30 September 1868
• Citation: 1868 WL 5184,49 Ill. 90
• Parties: THE WESTERN UNION TELEGRAPH COMPANYv.THE PACIFIC AND ATLANTIC TELEGRAPH COMPANY.
• Court: Illinois Supreme Court

49 Ill. 90

1868 WL 5184 (Ill.)

THE WESTERN UNION TELEGRAPH COMPANY

v.THE PACIFIC AND ATLANTIC TELEGRAPH COMPANY.

Supreme Court of Illinois.

September Term, 1868.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago.

The opinion states the case.

Mr. J. D. CATON and Messrs. DENT & BLACK, for the appellants.

Messrs. TYLER & HIBBARD and Mr. GEO. C. CAMPBELL, for the appellees. Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an appeal from the Superior Court of Chicago, from a decree refusing an injunction and dismissing appellants' cross bill and amended cross bill. On the meeting of this court appellants entered a motion for a temporary injunction, according to the prayer of the bill, to restrain appellees from attaching their telegraph wires on the poles upon which the wires of appellants were suspended, along the route of the Columbus, Chicago & Indiana Central Railway Company, extending from Chicago towards La Crosse, Indiana. The motion was allowed and the injunction granted, to continue in force until the further order of the court, or until this appeal should be decided.

Appellees entered a motion for the allowance of a writ of certiorari to bring up a copy of appellees' original bill, filed in the court below, and in which case this cross bill was filed. This motion was, however, denied, because it appears, from the record in this case, that the injunction was denied and the cross bill was dismissed upon that bill alone, without reference to the original bill, or proceedings thereunder, or any answer to the cross bill. Had the decree been otherwise, and it had appeared the application was heard upon it and the cross bill, then it would have been necessary to have before us the original bill of appellees, and have determined from it and the cross bill whether the court below had erred in dismissing the cross bill. But when we see that the superior court acted alone on the cross bill, and held that it, on its face, contained no equity, we can see that there was a final decree on the cross bill, and that it was not necessary to refer to the original bill, as it was not considered by the court on the hearing in the superior court. Hence, the motion for the writ of certiorari was refused.

On filing the record in this court, appellants assigned upon it these errors: “1st. That said superior court erred in denying the injunction.

2d. That said court erred in dismissing said cross bill and amended cross bill respectively.

3d. That said court erred in rendering a decree against the plaintiff.

4th. That said court erred in not granting the relief prayed for by the plaintiff.”

Afterwards, appellees confessed all but the last error. Having done so, they thereby confess that the bill, on its face, and, as it was framed, presented a case, which, unanswered, in equity entitled appellants to an injunction. This being so, it is unnecessary to discuss the questions presented by the errors which were confessed.

As to the fourth assignment of error, it is only necessary to say, that the case was not ripe for a hearing. It would have been error to have rendered a final decree granting the relief...