dissenting:
The majority opinion finds that the order of June 22, 1948, dismissing defendants’ suggestion of damages, is a final judgment, conclusive as to the rights of the parties, from which no appeal was taken within the statutory time and which is therefore res judicata of all matters raised in the later petition filed April 25, 1950. Assuming that the matters contained in the later are substantially the same as those raised in the prior petition, I am unable to agree that the order of June 22, 1948 is a bar to a subsequent petition raising the same issues.
This case came before this court originally upon a question as to the validity of two orders of the superior court of Cook county, one of June 25, 1945, granting the temporary injunction, and the second of July 6, 1945, purporting to make the former “a final order.” We reversed both orders and remanded the cause with directions to dismiss the complaint for want of equity. Montgomery Ward & Co. v. United, etc., Employees, 330 Ill. App. 49. The effect of the reversal of the order granting the temporary injunction was to require the trial court to dismiss it upon motion. A further appeal to the Supreme Court was allowed, and in Montgomery Ward & Co. v. United, etc., Employees, 400 Ill. 38, the judgment of this court was affirmed. On June 7, 1948, defendants made a motion in the trial court to dissolve the temporary injunction. They also filed a petition, in accordance with section 12 of the Injunction Act (Ill. Rev. Stat., chap. 69, par. 12 [Jones Ill. Stats. Ann. 109.360]), asking dissolution of the temporary injunction, claiming damages allegedly sustained by reason of the wrongful issuance of the injunction and asking that the matter be set for hearing. The trial court should then have dissolved the temporary injunction, heard defendants ’ petition for damages, and dismissed the bill for want of equity — all in accordance with our mandate. It refused to dissolve the temporary injunction, and on June 22, 1948, entered a brief peremptory order that “the defendants’ suggestion of damages be and the same is hereby dismissed and * * * motion of defendants to dissolve the temporary injunction be and the same is hereby denied. ’ ’
This was the state of the record on April 25, 1950, when the second application for assessment of damages was filed. The temporary injunction had not then been dissolved, there had been no hearing on the suggestion of damages, nor had the bill been dismissed. The record is not clear as to the reasons why the mandate was not complied with, but it was argued here, and the trial court was apparently of the opinion, that the order granting the temporary injunction had been merged in the “final” order of July 6th and that it was therefore unnecessary to dissolve the temporary injunction. This contention cannot be sustained. The trial court had no discretion in the matter. Our opinion recites that both orders were appealed from, and both orders were specifically reversed. The dissolution of the temporary injunction was a sine qua non to a hearing upon a suggestion of damages under section 12 of the Injunction Act. The refusal of the trial court to dismiss the temporary injunction resulted in depriving defendants of a hearing under the Act. There having been no dissolution of the injunction and no hearing on the question of damages, the order of June 22nd is not res judicata of any of the issues here involved. Indeed, plaintiff urges as one of the principal grounds why no recovery of damages may be had under section 12 is the fact that the temporary injunction has never been dissolved. Plaintiff should not be heard to argue that because the temporary injunction has never been dissolved proceedings to fix damages are untimely, and in the same breath insist that the question of damages has already been adjudicated. It is my conclusion that the cause is still pending and undetermined below. The cause, therefore, should be remanded with directions to the trial court to dissolve the temporary injunction, to proceed with the hearing as to the suggestion of damages, and to dismiss the bill for want of equity.