Bochner v. Automatic Time Stamp Co.

Mr. Presiding Justice Windes delivered the opinion of the court. The failure to abstract the stipulation in'regard to solicitor’s fees is sufficient to justify us in affirming the judgment for want of a sufficient abstract of the record, but as defendant in error has not asked it, and the record is short, we have seen fit to consider the merits. Martin v. McMurray, 74 Ill. App. 44; City of Chicago v. Fitzgerald, 75 Id. 176; Arnold v. Gehring, 76 Id. 486; Gibler v. City of Mattoon, 167 Ill. 18. Aside from injunctions enjoining judgments, the statute of this State (Hurd’s, Oh. 69, Sec. 9) provides, in all other cases, that a bond shall be given as required by the court, judge or master granting or ordering the injunction, except for good cause shown, a bond need not be required. Sec. 1L of the same chapter is, viz.: “All bonds required by this act shall be filed with the clerk of the court to which the writ is returnable, before such writ shall issue.” In this ease no bond was required before the injunction was issued, but months afterward the court ordered that unless a bond was given the injunction would be dissolved. It is claimed the bond is void because it was approved by the clerk and was not approved by the judge. W e can not assent to this proposition. The statute empowered the court to issue the injunction without bond, which was done, and we see no reason why the court could not thereafter, so far as concerns its power, dissolve the injunction unless a bond was given. It is true, there is no warrant in the law for the court ordering the clerk to approve the bond (Rutan v. Loganda Nat. Bank, 72 Ill. App. 35, and cases cited), but that does not for all purposes make the bond a nullity. Plaintiffs in error did not execute the bond under compulsion. They might have allowed the court to dissolve the injunction. It was therefore their voluntary obligation, given on a good consideration, and as such is good at common law, though not as a statutory bond. Wanless v. West Chicago St. R. R. Co., 77 Ill. App. 120, and cases cited; Ballingall v. Carpenter, 4 Scam. 306; Barnes v. Brookman, 107 Ill. 317. The case of Alles Plumbing Co. v. Alles, 67 Ill. App. 252, and many others of like tenor which plaintiffs in error might have cited, are not applicable. They merely decide that because there was a failure to comply with the statute the parties so failing could have no benefit under the statute. It being a voluntary obligation, the bond and the remedies thereon must be considered without reference to the statute. Ryan v. Anderson, 25 Ill. 382; Hibbard v. McKindley, 28 Ill. 240. It is therefore immaterial, so far as concerns plaintiffs’ right of recovery, that no damages were awarded by the chancery court in the injunction suit. It is sufficient, under the bond, that the damages have been awarded in this suit. Hibbard case, supra; Linington v. Strong, 8 Ill. App. 386; Marthaler v. Druiding, 58 Id. 336. We can not refrain from expressing our surprise at counsel’s argument, in view of the stipulation, which was not abstracted, and the evidence bearing on the amount of damages awarded by the court. This- stipulation fully meets any question in that regard, the record showing, as it does, that the damages are made up of solicitors’ fees, $930, and costs, $28, paid and incurred in procuring a dissolution of the injunction. The judgment is affirmed.