Walker v. Pritchard

• Decision Date: 31 October 1890
• Parties: WALKER v. PRITCHARD et al.
• Court: Illinois Supreme Court

135 Ill. 103

25 N.E. 573

WALKER

v.PRITCHARD et al.¹

Supreme Court of Illinois.

Oct. 31, 1890.

Appeal from appellate court, second district.

Bill by Reuben M. Pritchard, Elliot Pritchard, and Elotia Pritchard against John Walker, administrator of the estate of Elotia Pritchard, deceased, to establish title to land, and to certain notes. For former opinion, see 12 N. E. Rep. 336.Carnes & Dunton

, for appellant.

Harvey A. Jones, for appellees.

MAGRUDER, J.

The facts of this case are sufficiently set forth in Walker v. Pritchard, 121 Ill. 221, 12 N. E. Rep. 336, and Pritchard v. Walker, 22 Ill. App. 286. The original bill was filed in the circuit court of DeKalb county by the appellees against the appellant and others to establish title to certain lands, and also certain notes made by Ethan A. Pritchard, and certain other notes made by Reuben M. Pritchard. The legal title to the lands stood in appellant's intestate, Elotia Pritchard, at the time of her death. Ethan A. Pritchard, now deceased, and appellee, Reuben M. Pritchard, were the sons of Reuben Pritchard, Sr., by a former wife, Elotia Pritchard having been the second wife of Reuben Pritchard, Sr., and step-mother of Ethan A. Pritchard and Reuben M. Pritchard. The appellee Sarah E. Pritchard is the widow, and appellees Elliot Pritchard and Elotia Pritchard second, are the children, of Ethan A. Pritchard. Ethan A. Pritchard in his life-time executed two notes secured by a mortgage to Elotia Pritchard. The appellee Reuben M. Pritchard also executed certain notes payable to the order of Elotia Pritchard, and after the death of the latter, he also executed five notes payable to the order of appellant as administrator of the estate of said Elotia Pritchard. Appellant, Walker, as such administrator, had filed a bill to foreclose the mortgage made by Ethan A. Pritchard, and had begun suits upon the notes made by Reuben M. Pritchard. In the original bill in this case, which was filed by Reuben M. Pritchard, and the widow and children of Ethan A. Pritchard, an injunction was obtained against the appellant, Walker, restraining him from prosecuting the suits for the collection of the notes made by said Ethan A. and Reuben M. The final decree was in favor of the complainants, and against Walker, as to the land, and as to all the notes, except the five notes executed by Reuben M. Pritchard to the order of the administrator. The injunction was dissolved as to said five notes, and made perpetual as to all the others. Upon the dissolution of the injunction as to the five notes, Walker, the defendant below, claimed damages by reason of the injunction, and suggested in writing the nature and amount of such damages under section 12 of the act in regard to injunctions. Chapter 69, Rev. St. (Starr & C. Ann. St. 1283.) The damages claimed are (1) the amount of the said five notes, and the interest thereon, and the costs of the suits upon them which were enjoined; and (2) a solicitor's fee ‘for legal work made necessary by the injunction as to those notes.’ The face of the notes, and the interest thereon, and the costs of suit, are claimed as damages upon the ground that Reuben M. Pritchard, the maker of the five notes, was solvent when the injunction was issued, but had become insolvent when the injunction was dissolved; and that, by reason of such insolvency, nothing can becollected upon the notes against him. The circuit court heard evidence upon the suggestion of damages, and allowed a solicitor's fee of $150, but refused to allow the damages claimed upon the notes as to which the injunction was dissolved. The decree entered by the circuit court upon the suggestion of damages has been affirmed by the appellate court, except as to the allowance of the solicitor's fee, which was brought up for review by the assignment of a cross-error. The judges of the appellate court have granted a certificate of importance, and allowed an appeal to this court.

The first question presented to our notice is whether or not damages can be assessed upon the partial dissolution of an injunction. Where the complainant obtains a decree making the injunction perpetual as to certain matters involved, but dissolving it as to certain other matters, can damages be assessed against him? This is not an action upon an injunction bond, as was the case in Ovington v. Smith, 78 Ill. 250. It is an assessment of damages under section 12 of the injunction act. That section provides that the court of chancery ‘shall hear evidence, and assess such damages as the nature of the case may require, and to equity appertain, to the party damnified by such injunction.’ The object of assessing damages is to compensate the party enjoined for the injury he has suffered. If he is wrongfully enjoined from doing one thing which he has a right to do, he is none the less injured because he is at the same time rightfully enjoined from doing another thing which he has no right to do. If the matter as to which the injunction is dissolved were the only matter involved in the suit, the right to damages would not be questioned. To deny such right simply because other matters are involved, does not appertain to equity. Upon principle, we see no reason why a defendant securing a partial dissolution of an injunction should not be compensated for his loss. Section 8 of the present injunction act, which went into force July 1, 1874, provides, in the same language which was used in section 11 of the act of 1845, that the court may award damages ‘if the injunction be dissolved in the whole or in part.’ Section 8 of the present act, as was true of section 11 of the act of 1845, applies only to injunctions against judgments. Section 12, which was first enacted in 1861, was designed to extend the power of the court to award damages to other cases than judgments. Forth v. Town of Xenia, 54 Ill. 210. Said section 12 authorizes the court, upon the suggestion of damages in writing, to assess the same ‘in all cases where an injunction is dissolved;’ but we do not think that this language was intended to limit the action of the court to cases where the injunction was wholly dissolved. As before 1861 damages could be assessed where injunctions against judgments were dissolved, whether in whole or in part, so, by the enactment of that date, such damages could be assessed where injunctions, granted in other cases than judgments, should be dissolved either altogether or only partially. It was left to the chancellor to award such damages as the case might require, and to equity might appertain, whether the dissolution was in whole or in part. We think the view here taken is sustained by authority. The question has never been directly decided in this state, but the right to assess damages for the partial dissolution of an injunction has been incidentally recognized. In Roberts v. Fahs, 36 Ill. 268, the injunction was against the sheriff from selling, under an execution which he had levied, a quantity of cord-wood and other property; upon final hearing, the injunction was dissolved as to the sale of the cord-wood, but made perpetual as to the other property levied upon. Written suggestions of damages were filed. It was there held that it was proper to allow 10 per cent. on the judgment enjoined as the proper measure of damages, but improper to include the principal, interest, and costs of the judgment in the amount of the damages assessed. In Willits v. Slocumb, 24 Ill. App. 484, where a collector of taxes was enjoined from collecting state, road, bridge and school taxes, and also the city and bond taxes due a certain municipality, the injunction was dissolved as to all the taxes except the city and bond taxes, and sustained as to the latter. It was held that damages were recoverable on the ground that the matters enjoined were separate and distinct claims. So, in the case at bar, the notes as to which the injunction has been dissolved are separate and distinct claims from those as to which the injunction has been made perpetual. In Pierson v. Ells, 46 Hun, 336, the defendant was enjoined from carrying on the livery business on certain premises, and from doing a number of other acts. The injunction was sustained as to carrying on the livery business, but dissolved as to the other acts. Damages were assessed by a referee as to the acts as to which the injunction was dissolved, and the same were allowed. In High on Injunctions (vol. 2, § 1649) it is said: ‘But the condition of the bond may be broken by a dissolution of the injunction in part as well as by a total dissolution; and a right of action may accrue although the injunction has not been wholly dissolved, provided the decree for a...