The opinion
Robson, P. J., specially concurring:
I concur in the conclusion of my colleagues that the complaint does not state a prima facie case for final relief such as would entitle the plaintiffs to an interlocutory injunction against defendants Samuel L. Rosenblatt and Joseph G. Engert, but I do not concur in their conclusion that the verification to the complaint upon which the injunction order was issued is adequate.
A long line of decisions have held that where a part of the relief prayed for in a complaint is an interlocutory injunction and certain allegations pertaining to such relief are made on information and belief, the use in the verification of the language “except for such facts as are stated on information and belief and as to these he verily believes them to be true” is bad. The reason is that the words “to be” are not included after the word “stated.” Christian Hospital v. People ex rel. Murphy, 223 Ill. 244 ; Deimel v. Brown, 35 Ill. App. 303 ; Siegmund v. Ascher, 37 Ill. App. 122 ; Grabowski v. MacLaskey, 257 Ill. App. 484 ; Palmer Grill, Inc. v. Nory, 268 Ill. App. 292 ; Brabrook Tailoring Co. v. Belding Bros. & Co., 40 Ill. App. 326 ; Stirlen v. Neustadt, 50 Ill. App. 378 ; Werner Co. v. First National Bank of Miamisburg, 55 Ill. App. 321 ; Grabarski v. Stankowicz, 179 Ill. App. 45 ; Schroth v. Siegfried, 162 Ill. App. 595 ; Chicago Exhibition Co. v. Illinois State Board of Agriculture, 77 Ill. App. 339 ; Neil v. Oldach, 86 Ill. App. 354 ; Board of Trade v. Riordan, 94 Ill. App. 298 ; Crawford-Adsit Co. v. Bell, 95 Ill. App. 427 ; James E. Pepper Distributing Co. v. McLeod, 121 Ill. App. 592 ; 2 High on Injunctions, sec. 1567.
My colleagues rely on Hulse v. Nash, 332 Ill. 500 , to justify their departure from this long line of precedents. Whether they are right or wrong, this case does not support their contention. First, the verification in question was on a petition in an election contest where the rules of construction are not applied as strictly as they are when injunctive relief is prayed for. Farrell v. Heiberg, 262 Ill. 407, 410 . Second, the court on page 506 distinguishes the language of the verification we have in this case from that involved in the case before it with this statement:
“It is true that an affidavit that the facts in a pleading ‘are true, except so far as they are stated on information and belief,’ has been held defective in failing to distinguish between matters stated on the pleader’s own knowledge and those .stated on information and belief. (Christian Hospital v. People, 223 Ill. 244 .) Such an affidavit, instead of referring the court to the pleading to ascertain what is represented to be on information and belief, requires a search of the mind of the pleader for what he intended to assert on information and belief. That, in our opinion, is not true of the affidavit in this case. Its words are, ‘except as to matters therein set forth on information and belief.’ We see no reason to depart from our former holding that that form is good in cases of this kind.”
It is well established that our Appellate Court must follow the law as stated by the Supreme Court. Field v. People, 2 Scam. 79 ; Harrison v. People, 125 Ill. App. 178, 184 ; Amann v. Faidy, 348 Ill. App. 37, 53 . The consequences that would follow if we failed to observe the doctrine of stare decisis is graphically discussed in the Field case when the court said on page 98:
“The doctrine, before this decision, was considered well settled, that when the supreme judicial tribunal of a state had declared what the law was on any point, when the same point came again in litigation, all other courts were bound to conform to its decision. A different rule would destroy all that stability and uniformity in the rules of law, which is so essential to the administration of justice, and the safety of the citizen. If every judge can decide according to his private sentiments, without regard to precedent and authority, there may be as many rules of decision as there are circuits; and the decision of one day would furnish no rule for the decision of the next. ‘Judges,’ says the circuit court, ‘are bound, in deciding a point of law, to follow a preceding decision upon the same point. Yet if such decision is founded in error, they are not bound by it.’ The correctness of this principle cannot be controverted, when applied to a court of equal or superior authority with the one deciding the point. But is it not obvious that the judge has misapplied the principle, in assuming for the circuit court authority to reverse a decision of the supreme court? Who does not see that such doctrine is subversive of the fundamental principles of the government? It is reversing the order of authority prescribed by the constitution and the law, and rendering nugatory the right of appeal. It will readily be admitted that an erroneous decision ought not to prevail, but who has the right to declare it so ? This authority includes the right of supervision and control, and if the circuit court has it, in reference to a decision of the supreme court, upon the same principle, a justice of the peace will have it, in reference to a decision of the circuit court; and one step further will give the right of supervision to the parties in the cause; thus resolving all authority back into the original elements. This would be the consequence of carrying out the position assumed.”
I believe that there is some substance to my colleagues’ reasoning for their departure from these past precedents but I am of the opinion that it is not our prerogative so to do. The laboring oar for changing the course in this instance belongs to the Supreme Court.