Williams v. Chicago Exhibition Co.

• Decision Date: 19 October 1900
• Citation: 58 N.E. 611,188 Ill. 19
• Parties: WILLIAMS v. CHICAGO EXHIBITION CO. et al.
• Court: Illinois Supreme Court

188 Ill. 19

58 N.E. 611

WILLIAMS

v.CHICAGO EXHIBITION CO. et al.¹

Supreme Court of Illinois.

Oct. 19, 1900.

Error to appellate court, First district.

Injunction by Lucas R. Williams against Chicago Exhibition Company and others. From a judgment of the appellate court (86 Ill. App. 167) affirming an order dissolving an injunction, plaintiff brings error. Reversed.A. Morris Johnson, for plaintiff in error.

Pam, Calhoun & Glennon, for defendants in error.

This is a bill in chancery, filed on November 21, 1898, by the plaintiff in error, as assignee of Elizabeth Lawrence, mortgagee, against the defendants in error the Chicago Exhibition Company and F. C. Austin Manufacturing Company, for the purpose of restraining them from removing certain buildings and improvements from the mortgaged premises. The bill is verified by the affidavit of the plaintiff therein, who swears that the allegations of the bill are, of his own knowledge, true in substance and in fact. Upon the same day, after giving a bond required by the order of the circuit court, a temporary injunction was issued, restraining defendants in error from removing, or causing to be removed, the building, chimney, machinery, and appendages described in the bill. On November 23, 1898, the defendant in error F. C. Austin Manufacturing Company made its motion to dissolve the injunction upon the face of the bill, and upon a hearing of the same the court upon the same day dissolved the injunction, and granted leave to said manufacturing company to file its suggestion of damages. Thereupon the complainant below, the plaintiff in error here, asked leave to dismiss his bill of complaint, which was done at his costs. The plaintiff in error then prosecuted a writ of error from the appellate court, and the appellate court entered a judgment affirming the decree of the circuit court. The present writ of error is sued out from this court for the purpose of reviewing the judgment of the appellate court so affirming the decree of the circuit court.

The bill alleges that on May 1, 1893, Gay Dorn executed to the Chicago Title & Trust Company a deed of trust conveying to said company, as trustee, lot 3 in block 1, and lots 1, 2, and the north 30 feet of lot 3 in block 4 in Park View subdivision in Cook county, for the purpose of securing a note for $5,000, payable three years after date, with interest at 7 per cent. per annum, payable semiannually, to the order of Elizabeth Lawrence, which trust deed was recorded, and contained the usual provisions in regard to default and foreclosure; that, default having been made in the payment of interest, Elizabeth Lawrence, on February 27, 1895, jointly with said trustee, filed a bill to foreclose said trust deed; that, after the filing of said bill, there was paid on account of the principal indebtedness $3,000, and thereupon, by agreement between Lawrence and Dorn, the latter being the owner of the equity of redemption in the property, the trustee released lot 3 in block 1 in said subdivision, without prejudice to the lien of the same upon the other property described in the trust deed; that, on or about March 13, 1897, a decree was entered in the foreclosure proceeding, finding $2,312.10 to be due to Elizabeth Lawrence for principal and interest, and also the sum of $150 for her solicitors' fees, and decreeing that, unless said sums and costs of suit should be paid within a short day, the master in chancery should sell lots 1 and 2 and the north 30 feet of lot 3 in block 4 in said subdivision; that Gay Dorn took an appeal from said decree to the appellate court, where the decree was affirmed; that from such judgment of affirmance by the appellate court Dorn took an appeal to the supreme court of this state; that on November 19, 1898, Gay Dorn and Elizabeth Lawrence made an agreement that the appeal then pending in the supreme court should be dismissed, without costs, which was accordingly done; that on the same day Elizabeth Lawrence, by written instrument, assigned to the plaintiff in error, Lucas R. Williams, all her right and interest in said decree of foreclosure, and in the premises therein described, and by express terms vested in plaintiff in error all the rights and remedies, existing in her favor at law or in equity for the protection and enforcement of the rights so conveyed to him; that Gay Dorn and wife, for a valuable consideration, entered into an agreement with plaintiff in error, waiving and releasing all errors, if any, which might have intervened in said foreclosure proceeding, either in the circuit court or the appellate court, and waiving their right to sue out any writ of error to review said decree, and giving to said Williams the right to enforce said decree. The bill then charges that after the recording of said trust deed and the beginning of the proceeding to foreclosure the same, and after Gay Dorn and wife had entered their appearance in the foreclosure suit, Dorn being the owner of the equity of redemption in the premises, the Chicago Exhibition Company, one of the defendants in error, erected and constructed upon lots 1, 2, and the north 30 feet of lot 3 in block 4 in said subdivision a certain building and structure with appurtenances, known as a ‘boiler house and heating plant,’ to be used in connection with a certain structure then occupied by said company, known as the ‘Coliseum’; that said boiler house was constructed of brick, upon a foundation composed of stone and cement, and imbedded in mortar, extending below the surface of said lots 12 feet; that said boiler house had a frontage of about 50 feet, a depth of about 45 feet, and a height of about 30 feet, the greater portion standing on said lot 2; that said boiler house contained, as part of said heating plant, four boilers, with six fire boxes located beneath the same, which are permanently and substantially attached to the freehold, encased in brick and cement, and firmly bound to a stone foundation; that erected as a part of said boiler house, and connected therewith, is a chimney or stack, built of brick and cement, of the diameter at the base of 12 feet, erected upon a massive foundation composed of iron beams. stone, and cement, extending to a depth of about 18 feet below the surface of the ground, and rising to a height of about 180 feet from the surface; that said boiler house contained furnaces, casings, doors, flues, pumps, pipes, condensers, and other machineries and equipments, all of which were a part of said building and heating plant, and used in connection with the same. The bill then alleges that said Chicago Exhibition Company claims to own said building, chimney, boilers, fire boxes, and other machinery above mentioned, and the right to remove the same under and by virtue of some pretended lease or contract with Gay Dorn, the nature of which is unknown to complainant; that said lease or contract, if any, was made without the knowledge, consent, acquiescence, or ratification of said Elizabeth Lawrence, or the plaintiff in error, and was made, if at all, subsequent to the filing of the appearance of Gay Dorn and wife in said foreclosure proceeding, and is subject to the rights of the complainant under said decree; that the defendant in error the F. C. Austin Manufacturing Company claims to have some interest in said building, chimney, boilers, and machinery, the precise nature of which is unknown to the plaintiff in error, and, together with said exhibition company, are asserting their right to remove said building, chimney, boilers, and machinery, and are threatening to remove the same, and will remove the same, or cause the same to be removed, unless enjoined by the order and decree of the court; ‘that, if the same are removed as aforesaid, the security of the complainant will be impaired, and the amount the same will bring at foreclosure sale largely decreased, and the complainant irreparably injured’; and that unless said injunction shall issue immediately, and without notice, irreparable injury will be done to the rights and interests of the complainant and his interests unduly prejudiced. The bill prays that the defendants thereto may be required to answer the same, and that they and their officers, attorneys, and agents may be enjoined ‘from removing or causing to be removed or displaced the said building, chimney, boilers, and machinery as aforesaid’; that an injunction issue immediately upon the filing of said bill, and without notice to defendants, upon complainant giving bond as required by law, and that upon final hearing said injunction may be made perpetual.

The final decree recites that: ‘The cause coming on to be heard on motion of solicitors for the defendant F. C. Austin Manufacturing Company to dissolve the injunction heretofore granted herein upon the face of the bill, and it appearing to the court, after argument, that the motion of said defendant should be sustained, it is therefore ordered, adjudged, and decreed that the injunction heretofore issued in this case be, and the same is hereby, dissolved, and declared of no effect. It is further ordered that said defendant be given leave to file its suggestion of damages within five days, and the hearing of said suggestion of damages is reserved for future hearing; and it is further ordered, upon motion of the complainant, that the bill of complaint be dismissed, at the complainant's costs, and that said cause is retained specially and only for the purpose of hearing and disposing of said suggestion of damages.’

MAGRUDER, J. (after stating the facts).

1. The only relief sought by the bill in this case is to enjoin the removal of the building, chimney, boilers, and machinery erected upon the mortgaged premises. The defendant in error F. C. Austin Manufacturing Company made its motion to dissolve the temporary injunction for want of equity appearing on the face of the bill. This motion operated as a demurrer to the bill, and admitted the...