Wangelin v. Goe

• Decision Date: 30 June 1869
• Citation: 50 Ill. 459,1869 WL 5252
• Parties: JULIUS WANGELIN et al.v.HENRY S. GOE.
• Court: Illinois Supreme Court

50 Ill. 459

1869 WL 5252 (Ill.)

JULIUS WANGELIN et al.

v.HENRY S. GOE.

Supreme Court of Illinois.

June Term, 1869.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of St. Clair county; the Hon. J. GILLESPIE, Judge, presiding.

The opinion states the case.

Messrs. G. & G. A. KŒRNER, for the appellants.

Mr. WM. H. UNDERWOOD and Mr. G. M. STEWART, for the appellee.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

The important question raised on this record is, as to the power of a circuit judge to grant an injunction on the facts stated in the bill of complaint, and that brings up the question of the refusal of the court to dissolve the injunction on motion, and the ruling of the court in disallowing a demurrer to the bill.

Appellants make the point, first, that the motion to dissolve should have been allowed, as the material allegations of the bill were disproved by the affidavits submitted by the defendants in support of the motion. We are not advised of any practice in our courts to submit affidavits on a motion to dissolve an injunction, and do not understand by what proceeding the affidavits, to which reference is made, have become a part of the record in this case. The motion to dissolve the injunction operates in the same way as a demurrer to the bill, and is based on matters intrinsic, appearing on the face of the bill, hence, no affidavits, showing extraneous matter, could be used. Titus v. Mabee, 25 Ill. 257.

When an answer is filed denying the allegations of the bill, it would then be in order to move for a dissolution of the injunction, as provided in chap. 72, entitled “Ne exeat and injunctions,” sec. 13 of which provides that upon filing an answer it shall be in order at any time to move for the dissolution of an injunction, and upon such motion, it is allowed to either party to introduce testimony to support the bill and answer, and this is substantially the English practice. This motion is to be decided by the court upon the weight of testimony, without being bound to take the answer as absolutely true. Gross' Stat. 458.

The motion to dissolve, and the production of affidavits, were, therefore, premature, and the court did right to disallow it.

The next point made is, that the demurrer to the bill should have been sustained, and the bill dismissed for want of equity on its face.

The office of a demurrer to a bill in equity is to deny, in form and substance, the complainant's right to have his case considered in a court of equity, and to admit all the allegations that are properly pleaded, and when it is disclosed on the face of the bill that a court of equity has no jurisdiction, because the party has an adequate remedy at law, the bill is obnoxious to a demurrer for want of equity, and it will be so adjudged on error or appeal. Winkler v. Winkler et al. 40 Ill. 179. To determine if the demurrer was well taken, we must look at the facts stated in the bill of complaint.

The most important, are briefly these: That complainant Goe is a resident of St. Clair county, and on the 9th of November, 1868, one Henry C. Yaeger was in the lawful possession of certain real estate in the town of Lebanon, in that county, containing two acres and four rods of ground, “being the tract of land known as the Wangelin Mill tract;” that Yaeger sold the same to complainant for fourteen thousand dollars, with the appurtenances, in fee simple, and put complainant in possession; that while so in possession he made valuable and lasting improvements on the premises and put the mill in good running order, and was running the mill, and had in it wheat and corn belonging to himself and his customers, to be ground into flour and meal, of the value of one thousand dollars, and that he was operating the mill with great profit to himself, his customers, and to the community generally; that, being thus in possession, on the 25th day of January, 1869, about 12 o'clock noon of that day, while he was absent at dinner, the defendants, Wangelin and Heuer, combining with others unknown, against the will of complainant, and with force and arms, broke and entered into possession of the premises, and with drawn pistols drove the miller from the premises, and have ever since, with a guard of armed men, with force, kept possession of the mill by day and by night, and deprived complainant of the use of the mill, thereby depriving him of large gains and profits; that thereby he has suffered irreparable injury and damages for which he has no adequate remedy at law, and he charges that neither of the defendants has property subject to execution at law. The prayer is, that the defendants, and all persons under them, be enjoined from interfering with complainant in the possession and operation of the mill, and that, on the final hearing, the injunction may be made perpetual, and for other relief.

It is apparent, the sole object of the bill was for an injunction to restrain defendants from doing what the bill alleges they had done, and if it was to have any effect whatever, it must be made to operate as a writ of restitution, a writ which the court could not grant, under the allegations and prayer of the bill. The deed was done, and there remained nothing on which the writ of injunction could operate. An injunction is understood to be a preventive remedy merely, and cannot be so framed as to command a party to undo what he has done. The very terms of the writ indicate its purpose, that is, restraint. It is described as a judicial process, by which a party is required to do a particular thing, or to refrain from doing a particular thing, according to the exigency of the writ, the most common sort of which operate as a restraint upon the party in the exercise of his real or supposed rights, and is called the remedial writ of injunction. The other sort, requiring a party to do a particular thing, is sometimes called the judicial writ, and only issues after a decree has passed, and is in the nature of an execution to enforce it. 2 Story's Eq. Jur. sec. 861.

It is further said, in the same treatise, that the object of this process is generally protective and preventive, rather than restorative, though, by no means confined to the former.

It is under this last branch of the definition appellee relies, to sustain this proceeding. His counsel say, the only point properly presented by the record is, whether a court of chancery will restrain, by injunction, an insolvent person, who, by brute force, with weapons, is molesting a party in the peaceable and lawful possession of his property, until the rights of the parties can be settled at law.

It is unfortunate for the appellee, that his bill of complaint contains no allegation that proceedings at law have been, or are about to be, instituted, to try the respective rights of these parties to the premises, nor is there any allusion whatever to any such proceedings. It is a naked bill for an injunction to restrain appellants from doing the acts which the bill alleges they have done. There is no prayer that appellants shall be turned out of possession and appellee put in. The facts stated disclose nothing more than a simple case of trespass, by a forcible entry and detainer, the remedy for which is ample at law, and fully adequate. It has often been held by this court, that a party can have no footing in a court of equity when he has an adequate remedy at law. Winkler v. Winkler et al., supra.

The point made by appellee is disposed of by saying, that, in a proper case, a court of chancery will restrain, by injunction, any person who, by brute force, with weapons, is molesting a party in the peaceable and lawful possession of his property, provided the rules of law, in their application to the case, shall afford him no adequate remedy. But that is not this case. There is no charge in the bill, that appellants are molesting appellee in the enjoyment of his property. The acts charged are past and done, and the prayer is, that they be restrained from doing them. As well might A, whose dwelling house has been entered by a trespasser during the temporary absence of the family, apply for an injunction to restrain him from doing such an unlawful act. We think the books will be searched in vain for a precedent of that character. It is urged by appellee, where a trespass is like to be repeated, and the party is insolvent, or adequate damages cannot be estimated in money, an injunction is proper, and in this connection says, that injunctions to prevent forcible dispositions of possession were common at one time in England, referring to 2 Story's Eq. Jur., secs. 869-70. By turning to sec. 869, it will be seen that the author is treating of cases wholly different from this. He says, “in the early course of chancery proceedings, injunctions to quiet the possession of the parties before the hearing, were indiscriminately granted to either party, plaintiff or defendant, in cases where corporeal hereditaments were the subject of the suit, the object of them being to prevent a forcible change of possession by either party, pending the litigation.” In the next section, 870, the author says, “the practice of granting injunctions of this sort has become obsolete in England, if not altogether, at least in so great a degree that there are few instances of it in modern times. But injunctions in the nature of an interdict, unde vi, of the Roman law, to restore a possession from which the party has been...