delivered the opinion of the court.
This appeal is prosecuted to reverse a decree of the Circuit Court of Cook county, awarding damages of $500 upon the dissolution of a temporary injunction. The order awarding the writ of injunction was reversed by this court. (People v. Eisenberg, 202 Ill. App. 63.) The dissolution of the temporary injunction and the assessment of damages followed.
The record discloses that the damages were awarded to the defendant for fees which he paid to his solicitors for services rendered in procuring the dissolution of the temporary injunction, and no point is made that the fees were not paid for such services nor that they are excessive.
Complainant insists that as the order awarding the writ of injunction was reversed on the sole ground that notice of the time and place of the application therefor was not given to the defendant—being a mere irregularity—the injunction writ was not wrongfully issued within the meaning of section 12 of the Injunction Act (J. & A. ¶ 6172), and the assessment of damages was improper; that where a temporary writ of injunction is awarded on the allegations of a bill which states a good cause of action and the injunction is afterwards dissolved for failure to give notice of the application, damages should not be awarded. No authorities are cited to sustain this contention, and we have been unable to find any. Section 12, which is the basis for the assessment of damages, provides that in all cases where an injunction is dissolved “the court, after dissolving such injunction, and before finally disposing of the suit, upon the party claiming damages by reason of such injunction suggesting, in writing, the nature and amount thereof, shall hear evidence and assess such damages as the nature of the case may require, and to equity appertain.” From this it is plain that “in all cases” upon a dissolution of an injunction the court is authorized to award damages, and this too before finally disposing of the suit. Manifestly the statute does not limit the assessment of damages to cases where a good cause of action is alleged in the bill of complaint.
It is further contended that the assessment of damages was wrong for the reason that the bill in the instant case prays for an injunction only, and that in such case, upon dissolution of a preliminary injunction in advance of determining whether the relief shall ultimately be granted, the assessment of damages is premature and unauthorized, and in support of this the cases of Terry v. Hamilton Primary School, 72 Ill. 476; Bolander v. Childs, 163 Ill. App. 57; Dempster v. Lansingh, 234 Ill. 381, and others are cited. If it be conceded that the proposition advanced by complainant is correct, yet we are of the opinion that it is not applicable here, for the reason that the bill seeks aid in addition to the granting of a writ of injunction. The prayer is that the defendants be perpetually enjoined and restrained from maintaining or permitting the premises described in the bill to be used for the purpose of lewdness, assignation or prostitution, and from using the premises for any purpose for a period of one year; and the further prayer is that the building and appurtenances be placed in the custody of the court, and for an order directing the sheriff to remove from the premises the fixtures and movable property and to sell the same in accordance with the provisions of an act for the suppression of public nuisances. (Laws of 1915, p. 371 [Callaghan’s 1916 St. Supp. ¶ 3591(2) et seq.].)
It might have been advisable for the chancellor to have postponed the hearing on the question of damages until the merits of the case had been heard, for he might then have been in a much better position to determine what damages, if any, should equitably be awarded, and it is only such equitable damages that are authorized by section 12. That section provides that the chancellor “shall hear evidence and assess such damages as the nature of the case may require, and to equity appertain.” Considering the particular facts in the instant case, the nature of the injunction, the reason for the reversal of the order awarding the writ, it is manifest that the chancellor might have been in a better position to assess such damages as the nature of the case might require and to equity appertain, after he had heard the evidence and before final disposition. For if it appeared on the hearing that the defendant’s property was being used for purposes of lewdness, assignation or prostitution in violation of the law, we think the chancellor would have been warranted in refusing damages. On the other hand, if the evidence disclosed that the property was being used for legitimate purposes, damage's should be awarded. In the Dempster case, supra, it was contended that it was improper for the court to hear suggestions of damages until it was determined whether the relief sought should be granted, and in that case, where the prayer for relief asked for more than a perpetual injunction, the court said, after quoting section 12: “By the above provision the power of the court to award such damages is beyond question, and the time for hearing such question is entirely within the discretion of the chancellor, with the express limitation that it must be ‘after dissolving such injunction and before finally disposing of the suit. ’ The court committed no error in hearing suggestions of damages in this case.” In the instant case, the court had the power to assess the damages without waiting for the final hearing of the case on its merits. It was within the discretion of the- court to hear the damages upon the dissolution of the injunction, or at a later time, and if the complainant desired that the matter be heard after the evidence had been introduced in the case in chief, he should have moved the court for that purpose, and if the motion was denied, the action of .the court in exercising its discretion in this regard would he subject to review. But no such suggestion was made to the chancellor, and of course the question of the abuse of discretion is in no way involved. The court having had the power to hear the question of damages when it did, and the complainant not having requested that the matter be postponed, he cannot now be heard to complain.
The decree of the Circuit Court of Cook county is affirmed.
Affirmed.