dissenting:
I mast dissent, becaase, in my opinion, the complaint in this case does not state a canse of action. The rales for reviewing the exercise of a chancellor’s discretion do not come into play if, as a matter of law, the complaint itself is deficient.
In Malnick v. Rosenthal, 313 Ill App 249, this court said at pages 254, 295, 39 NE2d 767:
It is fundamental that to entitle a plaintiff to relief by way of temporary injunction, his complaint must allege facts which prima facie give him the right to the relief prayed for on a final hearing.
Since plaintiffs’ complaint did not make out a prima facie case for the final relief they sought, they were not entitled to a temporary injunction with or without notice. In this view of the record it becomes unnecessary to consider other points raised on this appeal.
And in reversing a temporary injunction order in Callahan v. Holsman, 351 Ill App 1, 113 NE2d 483, Mr. Justice Schwartz stated at page 6:
. . . appellants urge that the complaint does not state a prima facie case entitling plaintiffs to injunctive relief against them. It is essential that a complaint should make a prima facie case for final relief by alleging facts which, if proved and not controverted, will entitle complainant to the relief prayed for.
See also: Baird v. Community High School Dist. No. 168, 304 Ill 526, 529,136 NE 671; Peoples Gas Light & Coke Co. v. Cook Lumber Terminal Co., 256 Ill App 357, 361; Bowman Shoe Co. v. Bowman, 21 Ill App2d 423, 440,158 NE2d 112 (2d Dist); Schuler v. Wolf, 372 Ill 386, 389, 24 NE2d 162; J. H. Walters & Co. v. Can-ham Sheet Metal Corp., 8 Ill App2d 121, 128, 130 NE2d 675 (4th Dist); Clayton v. Hubbard, 33 Ill App2d 439, 441, 179 NE2d 845; Jones v. City of Chicago, 348 Ill App 310, 313, 108 NE2d 802.
The majority’s opinion points out that “no motion was made to strike the complaint as being insufficient.” The only inferences I can draw from this statement are that, somehow or other, the defendant property owners (the Karels) waived their right to question the sufficiency of the complaint, or are estopped from doing so. Neither inference is sound.
The Karels were not served with summons, notice or injunction writ. How they learned of the injunction does not appear, but it is clear that they were not yet required to file any pleading and had not done so. (Supreme Court Rule 8.) Their first move, promptly taken, was to petition the court to vacate the injunction, and in that petition the first and foremost point raised was that the complaint failed to state a cause of action.
The necessity for a sufficient complaint is so basic that even if the Karels had filed an answer, as the contractor did, they would not have been prevented from asserting the insufficiency of the complaint on their motion to dissolve the injunction. In reversing a temporary injunction, this court said in the often-cited ease of Biehn v. Tess, 340 Ill App 140, at page 144, 91 NE2d 160.
The sole issue on this appeal is whether plaintiff is entitled to any injunctive relief. This of necessity brings into question the sufficiency of the complaint. There can he no doubt that if plaintiff did not have an equitable right to an injunction, that the order therefor was improper. In a proper case a court of equity will grant a temporary injunction to preserve and hold in status quo the rights of the parties until the cause can he disposed of on its merits. However, if it appears from the face of the complaint that there is no equity in it and no sufficient grounds are disclosed therein why the court should interfere, it is error to grant a temporary injunction. . . . The instant appeal is from the order granting the temporary injunction. The fact that in the same order defendants’ motion to dismiss the complaint was overruled and that they elected to answer rather than to stand on their motion, would not justify the order for a temporary injunction if the complaint in fact failed to state a case for equitable relief. If the rule were as plaintiff contends, a court could grant a temporary injunction though the complaint stated no ground for equitable relief.
I, therefore, consider it important for this court to examine the complaint to determine its legal sufficiency.
Three building restrictions are referred to in the complaint. It is alleged, first, that the recorded plat of subdivision contained restrictions, but their terms are not set forth and there is no allegation that these plat restrictions were violated.
Next it is alleged that the deeds from the subdivider to the lot purchasers contained restrictions, but their terms are not set forth and there is no allegation that these deed restrictions were violated.
Finally, it is alleged that in 1959 plaintiff adopted a “Building Code” containing a minimum area restriction, the terms of which are set forth in the complaint (and are quoted in the majority opinion), the pertinent parts requiring a minimum area of 1100 square feet, “to be measured from inside of exterior walls.” This is the only restriction which the complaint even attempts to allege was violated. That allegation is that defendants have started construction of a building and that “the foundation of said building is only 1065 square feet.” *
It would be reasonable to assume from a quick reading of the complaint as it relates to the three restrictions I have outlined, that all three restrictions are the same. But they are not. In this I think plaintiff took advantage of the chancellor, and I am certain that it sought to take advantage of this court in the same way. Because in plaintiff’s brief it has stated: (1) that the recorded plat “contains the building restrictions sought to be enforced”; (2) that the deeds “contain the same restrictions”; (3) that plaintiff “adopted the same restrictions”; and that plaintiff’s Building Code “repeats such restrictions and incorporates the recorded plat.” Yet in open court at oral argument it was conceded by counsel for plaintiff that while the plat and deed restrictions were the same, the “Building Code” restrictions were different; that in the “Building Code” there was added for the first time the restrictive concept of measurement from “inside” of the exterior walls.
What is the significance of these misleading allegations in the complaint, and these untrue statements in the brief? Just this: the defendants had notice of the restrictions in the deed and had constructive notice of the restrictions in the recorded plat, but the complaint does not allege that plaintiff’s “Building Code” was ever made a matter of public record, and it does not allege that defendants were given notice of the terms of its restrictions. And these latter restrictions are the only ones defendants are charged with having violated. Indeed, the contractor’s verified answer states flatly that there was compliance with the plat and deed restrictions, and, as mentioned, the complaint contains no contrary allegation.
In furtherance of its course of deception, a part of plaintiff’s brief is devoted to arguing the proposition that defendants are to be considered as having had constructive notice of the restrictions contained in the recorded plat or deed. This proposition is certainly sound, but entirely beside the point under the circumstances. Also irrelevant, in my opinion, is the majority’s statement, with citation of authority, that a recorded plat is “notice to the world.” Further, I disagree with the majority opinion’s ensuing conclusion that the question of whether or not defendants are bound by the restrictions of the plat is a matter for proof. They are so bound, as a matter of law and without any proof, but that principle is determinative of nothing whatsoever in this case.
The one restriction which the complaint asks the court to enforce is the one of which defendants are not alleged to have had notice. Thus, the complaint is fatally defective, because notice is an indispensable element in the enforcement of restrictive covenants. As stated in McGovern v. Brown, 317 Ill 73, at page 79, 147 NE 664:
The second question argued is whether or not defendants had actual or constructive notice of the restriction in favor of the other lot owners when they purchased their lots. The general rule is, that if a subsequent purchaser acquires a title to a lot in a restricted area of this character, either by conveyance from the original grantee or by mesne conveyance from him, without notice, either actual or constructive, of the general plan of the buildings or occupation which imposes a building line restriction, the restriction cannot be enforced against him.
In Reis v. Bixhorn, 271 Ill App 279, the court reversed an injunction issued to restrain violation of a restriction contained in an unrecorded deed. In remanding with instructions to dismiss for want of equity, the court said at page 282:
Appellees had the burden of proving that appellants, at the time they purchased the premises in question, had knowledge, either actual or constructive, of the restriction in the prior deed. The evidence fails to establish such facts. "Without such proof, an essential element of appellees’ case was lacking, and they were not entitled to the relief sought.
There is one oblique reference to notice in the complaint. It is to the effect that defendants started construction, and that “despite notice, continue said construction.” This clause is an inadequate allegation that there was a proper communication to defendants of the full terms of the “Building Code,” but, in any event, it appears that whatever the “notice” was, it came too late to be of any effect. The contractor’s affidavit, consistent with this allegation of the complaint, makes it clear that the “notice” from plaintiff was a request to stop construction after it had begun. This, of course, is too late, since, as indicated by the opinions above, the notice must be prior to acquisition of title. Any restriction of this character sought to be imposed subsequent to purchase would be so grossly unfair that it could not be countenanced by a court of equity. Under the circumstances, this fatal defect which I find in the complaint could not be cured by amendment.
Even if the “Building Code” restrictions were held to be applicable to defendants’ lot, I do not believe that the complaint alleges a violation. The only minimum established is that of square feet “inside of exterior walls” The violation, on the other hand, is alleged to consist of having inadequate space within the foundation. The exterior walls of buildings frequently enclose larger space than their foundations. The Inland Steel Building in Chicago and the new gymnasium of the University of Illinois are examples, along with thousands of residences and other buildings seen on any ride through Cook County. Nor is this a new development in architecture. I can surely take judicial notice of the fact that my own home, a simple stucco house, built in 1910, has a second-floor space larger than the first, an attic larger than the second floor, and all three larger in area than the foundation. There is no identity between the area enclosed by exterior walls and that enclosed by a foundation, and the complaint contains no allegation that defendants’ home has less than the required space within its exterior walls.
I would reverse the injunction order and dismiss the complaint.
The term, "floor space,” used by the majority, is not found in the complaint, and constitutes, in my opinion, an unjustified determination of the meaning of the quoted words of the complaint.