# Bohn Aluminum & Brass Co. v. Barker

> Appellate Court of Illinois · February 1, 1972 · 3 Ill. App. 3d 600

URL: https://www.frixlaw.com/law-library/cases/9710766

## Case

- **Full name:** Bohn Aluminum & Brass Company, Plaintiff-Appellee, v. Lewis Barker, President of Local No. 760 of the International Union United Automobile, Aerospace and Agricultural Implement Workers of America, Defendant-Appellant
- **Court:** Appellate Court of Illinois
- **Decided:** February 1, 1972
- **Citations:** 3 Ill. App. 3d 600; 278 N.E.2d 247; 79 L.R.R.M. (BNA) 2481; 1972 Ill. App. LEXIS 1846
- **Precedential status:** Published
- **Opinion:** Dissent by Craven
- **Judges:** Smith, Craven
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Bohn Aluminum & Brass Co. v. Barker, 55 Ill. 2d 177 (1973).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9710766

## Opinion text

Mr. JUSTICE CRAVEN dissenting:
I do not agree that the issuance of a temporary restraining order by the circuit court and the subsequent refusal to dissolve it is immune from review on appeal. As I see it, such action is reviewable. In County of Cook v. Ogilvie, Ill.2d, N.E.2d, Docket No. 44779, the Illinois Supreme Court review and affirmed the issuance of a temporary restraining order. Although the question of reviewability was not specifically discussed, there was review.
I agree with the majority that the issue here is not moot. In a consideration of this case we should deal with it on the basis of the merits and within the purview of the several statutory provisions applicable to injunctions and temporary restraining orders.
Section 2a of ch. 48, Ill. Rev. Stat. 1969, contains that which is referred to as the Illinois Anti-Injunction Statute. That enactment was a declaration by the legislature originally enacted in 1925 with reference to the use of judicial restraints in controversies arising out of or concerning terms or conditions of employment. I view this enactment as a clear policy statement aimed at discouraging judicial intervention in labor matters.
Further, in sec. 3 with reference to the statute on injunctions (par. 3, ch. 69, Ill. Rev. Stat. 1969), it is provided that no court should grant an injunction without previous notice unless it appears from the complaint or affidavit accompanying the application that the rights of the plaintiff will be unduly prejudiced unless the injunction was issued without notice. A 1967 amendment to this section broadened the limits prohibiting the issuance of temporary injunction to provide that such should not be issued unless it clearly appears from specific facts shown by a verified complaint or affidavit that immediate and irreparable injury will result to the applicant before notice.
Also in 1967, sec. 3 — 1 was added to the injunction statute providing the procedure for and the limitations on the issuance of temporary restraining orders. This statute provides:
“No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that imemdiate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon. Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk’s office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time * * * ”
The temporary restraining order here involved was sought by a motion that purported to be pursuant to this statute and the order entered was in accordance with the procedural aspects of this statute and purports to have been issued in accordance with its terms and provisions.
The complaint and affidavit filed in this case alleges with some specificity certain acts and doings of the defendant, but it is also replete with many conclusions of the pleader. For instance, it is asserted that the defendant and others continued a campaign of intimidation by interferring with ingress and egress by trespassing and damaging plaintiff’s property. The asserted irreparable harm relates to a conclusion that unless the defendant is restrained and enjoined, such conduct will continue and will cause great and irreparable damage to the plaintiff. The affidavit in support of the motion does relate several factual incidents. It does not amplify the allegations of the complaint, however, with reference to irreparable damage but merely concludes that the customers of the company must have their finished products and if they don’t, the company will suffer damage thereby.
As I view it, it is patent from an examination of the complaint and affidavit that no good reason existed for the issuance of a temporary restraining order without notice. This complaint and motion for the temporary restraining order were filed on May 5. The complained of conduct of the defendant relates to the period commencing on March 4, 1970, and the last specific act complained of occurred on April 27, 1970. We should immediately inquire as to whether there were other acts between April 27 and May 5 that were omitted from the complaint; and if there were none, what justification is there for seeking a temporary restraining order without notice when the last complained of act was April 27 and the ex parte order was sought and obtained on May 5. Clearly, there was adequate time and opportunity for notice.
It may be that the conduct of the defendant was such that a temporary restraining order would be justified, and indeed it may be that upon the trial of the issue the plaintiff would have been entitled to the issuance of a temporary injunction or even a permanent injunction. That issue should await a trial on the merits.
The validity of the action of the trial court in issuing a temporary restraining order without notice is not measured by the eventual right of the plaintiff to relief, nor is such ex parte action clothed with the presumption of validity. The sole test of the validity of the action of issuing a temporary restraining order without notice and without bond is whether the complaint and the affidavit standing alone established such a clear and compelling necessity for judicial intervention by the extraordinary, indeed drastic, summary writ so as to prevent irreparable damage. I agree with the defendant that notice is so fundamental to our system of jurisprudence that the exercise of judicial authority without notice and without the opportunity to be heard under circumstances where notice is clearly possible, should be a rare circumstance indeed. This case is not such a circumstance.
As noted by the court in Skarpinski v. Veterans of Foreign Wars (1951), 343 Ill.App.271, 98 N.E.2d 858 , notice is a fundamental requisite to the exercise of judicial power:
“In the most primitive concepts of justice, one of the fundamental requisites for the exercise of judicial authority over the person or property of another is notice. The exceptions to this rule are rare, indeed. They embrace cases where by a stroke of the pen, a movement of the hand, or a tour de force executed overnight the defendant intends to and can destroy the substance of the litigation and thus defeat the power of the court to do justice. * * *
“In the last analysis, to test the necessity for the issuance of an injunction without notice, the court must ask whether in the minutes or hours required to procure a defendant’s appearance, defendant could and would do that which would seriously obstruct the court’s power to deal justly and effectively with the issue in dispute. # * *”
The statutory provisions above quoted and the numerous cases thereunder indicate a legislative policy precluding temporary restraining orders without notice. The legislative history of these various provisions shows that the judicial authority to issue injunctions and temporary restraining orders has been progressively restricted. Judicial decisions, it seems to me, have been progressively restrictive with reference to judicial actions restraining and enjoining acts and doings of an individual without notice to him. Representative cases are:
Stenzel v. Yates (1951), 342 Ill.App. 435 (4th Dist.), 96 N.E.2d 813 Miollis v. Schneider (1966), 77 Ill.App.2d 420 ( 2nd Dist.), 222 N.E. 2d 715
Schaefer & Schaefer v. Stephens-Adamson Mfg. Co. (1953), 36 Ill.App.2d 310 (1st Dist.), 183 N.E.2d 575
Skarpinski v. Veterans of Foreign Wars (1951), 343 Ill.App. 271 (1st Dist), 98 N.E.2d 858
Repco Enterprises, Inc. v. United Autoworkers (1970), 128 Ill.App. 2d 63, 261 N.E.2d 322 (2nd Dist.)
There are cases of course wherein the issuance of an injunction or temporary restraining order without notice is compelled. Those to which the plaintiff has made reference are for the most part cases decided prior to the 1967 statutory provision limiting the issuance of temporary restraining orders. Finally, it should be noted this labor dispute was in Beardstown, Illinois. The defendant was an employee of and known to the plaintiff. There is no basis in this complaint, nor in the affidavit, nor in the facts pleaded, that would in any way excuse the giving of notice.
The majority immunizes the action of the trial court from direct review because the order entered was a temporary restraining order and not a temporary injunction. Both, of course, are interlocutory orders. Presumably, under the majority opinion the same pleadings and the same affidavit could have produced a writ called a temporary injunction rather than a temporary restraining order and such would have been expressly reviewable under Supreme Court Rule 307. For purposes of review, it seems to me the difference in but pure semantics.
In Wiseman v. Law Research Service, Inc., Ill.App.2d 270 N.E.2d 77 , this court acknowledged that substance, not semantics, was the only proper concern in determining appealability. In that case, the trial court was asked to stay a trial and enjoin and restrain the further prosecution of the case. We reviewed under Rule 307 and said:
“* * # It seems to us on further reflection that the denial of this motion was an interlocutory order refusing an injunction and thus within the context of Supreme Court Rule 307, Ill. Rev. Stat. 1969, c. 110A, par. 307, which provides that ‘An appeal may be taken to the Appellate Court from an interlocutory order of court (1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction; * * *’. Even if defendant had not used the open-sesame-word ‘enjoin to invoke this rule, the words ‘stay’ and restrain’ mean about the same and had a ‘stay’ alone been allowed, its effect would have been to ‘enjoin’ further proceedings. See Valente v. Maida, 24 Ill. App.2d 144 , 164 N.E.2d 538 . * * * ”
Finally, the majority opinion appears to me to be erroneous in another respect. It holds there can be no appeal to question the issuance of a temporary restraining order. The majority opinion concludes, however, by inviting collateral attack upon the issuance of such order when it states that if damages result from the improvident issuance, there is nothing that precludes proper relief and then concludes that the determination of whether the restraining order was valid remains to be determined in a different suit, on a different day, and in a different forum, after a hearing on the merits. Such language is a clear invitation to a collateral attack putting into subsequent inquiry the validity of the action, the direct review of which the majority forcloses.
For the reasons expressed, I cannot concur in the action dismissing the appeal. I would reverse the judgment in the circuit court of Cass County.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9710766. Public record. Not legal advice.