Brown v. American Stone Press Brick Manufacturing Co.

Mr. Justice Waterman delivered the opinion of the Court. Plaintiff in error filed in the Superior Court a bill setting forth the obtaining from her by fraudulent practices of certain certificates for stock in a building and loan association. The bill asked that the holder of the certificate be enjoined from transferring the same, and offering, if the court thought she ought, to surrender what she had received therefor; asked that the certificate be returned to her. A preliminary injunction having been granted, the same was, on motion of the defendants, dissolved, whereiq o i, as appears from the record, upon motion of the complainant, the bill was dismissed for want of equity. Thereupon the complainant sued out a writ of error. Had the bill been purely an injunction bill, that is, had the only remedy sought been an injunction, after the dissolution of the injunction, that being in effect a final order, denying all relief sought, the complainant might have dismissed her bill and appealed or taken out a writ of error; such appeal or writ would in such case have brought up the question of the propriety of the order of dissolution. Titus v. Maybie, 25 Ill. 257. And this without the taking of an exception. Exceptions to the action of the court are not necessary in chancery. The bill in the present case, asking, as it did, for relief other than by injunction, and it being manifest that other relief was necessary to the complainant—indeed, that without other relief the injunction would be useless, the order of dissolution can not be considered a final one. The bill presents a case of great and we may say cruel imposition. If the things therein alleged are true, the complainant ought to find a remedy. Whether, as the case now stands, she has any, we are not called upon to say; it may be that the building and loan society, having notice of her claims, would not be protected in recognizing any person other than the complainant as the owner of the certificate. The motion of complainant to dismiss the bill for want of equity, seems to have been a mistake. A complainant does not, understandingly, dismiss his bill for want of equity; if he dismiss when there has been no hearing, as in this case, he ordinarily dismisses without prejudice. An order dismissing a bill for want of equity involves the idea that the court has considered the bill and finds no equity in it. In the present case, no pleading had been filed by any of the defendants; no evidence had been heard; the court therefore considered only the propriety of maintaining the injunction. Under the circumstances the bill should not have been dismissed for want of equity. The abstract filed by plaintiff in error is insufficient, being as to much of the record a mere index. This being an equity case, this court will modify the decree by ordering that the dismissal of the bill ■ be without prejudice. This, order being eos gratia, the defendants in error will recover their costs iij._th.is court. Sexton v. Chicago Storage Co., 30 Ill. App. 95. Decree modified.