The issues are so fully and fairly set forth in the opinion of the court, it is unnecessary for me to supplement them in any way. I disagree with my colleagues on the vital question in the case. The court refers to Skarpinski v. Veterans of Foreign Wars of United States, 343 Ill. App. 271, 98 N.E.2d 858, where it was said that a telephone call from the courtroom can produce an appearance, and while that was not suggested as a substitute for formal notice, it was at least a desirable alternative to no notice at all. I construe this to mean that if precise notice of time and place could not be given, the next best method should be used to get notice to an adversary of the imminent application for an injunction. In other words, I would answer in the affirmative the question propounded by the court — should notice have been given during the preparation of the case in anticipation of the subsequent shortage of time?
In the instant case, plaintiff knew that the acts it was seeking to enjoin had occurred on prior occasions. Accepting as true the averments of the complaint, that plaintiff was not warned of the possibility of a renewal until the Wednesday preceding the Friday when the complaint was filed, and then for the first time thought of procuring an injunction, the thing that should have occurred to plaintiff or its lawyers at once was how to get some form of notice to defendants. At some point in its preparation of the case plaintiff should have recognized its inability to give the customary formal notice and have made bona fide efforts by telephone or otherwise for the next best alternative. I cannot agree with my colleagues that plaintiff had the right to wait until the complaint was filed and the suit assigned. That would leave it in the hands of plaintiff to create the emergency. As a practical matter, fixing a time and place for meeting and going from there to the assigned court is not uncommon. It would have been easy and simple for plaintiff to get notice to defendants because it had an office in the town where defendants lived.
True, as stated in the opinion of the court, the statute provides that an injunction may issue without notice where the rights of the plaintiff will be unduly prejudiced if an injunction is not issued immediately or without notice. But that does not command the issuance of an injunction. It merely provides the basic generalized requirements without which an injunction may not issue without notice. The discretion of the court still is to be invoked. The temptation to proceed without an adversary is very great when an emergency such as the one here involved arises. Therefore, not only should it be incumbent upon lawyers to make an effort to get some kind of notice to defendants, but in my opinion it is an abuse of discretion for the court not to require it, save in such exceptional instances as are referred to in the Skarpinski and other cases cited in the opinion of the court.
The case of O’Beirne v. City of Elgin, 187 Ill. App. 581, appears to support the conclusions of my colleagues. That case arose in 1914 and involved an injunction restraining a special election to determine the acquisition of a public utility by the City of Elgin — a municipal ownership question which in those days aroused bitter controversy. No notice was given to any official of the City of Elgin. With respect to the argument that the complainant might have filed his bill earlier and thus have had time to give notice of his application, the court said it knew of no law which forbade the issuance of an injunction without notice, on the ground that the complainant may have commenced his proceeding earlier and given notice. It seems to me the court overlooked the fact that the matter was addressed to the discretion of the chancellor, and that he should have taken into account the size of the city, the ease with which it could have been notified, and the fact that the complainant might have delayed the filing of suit in order to fit the cause within the requirements of an emergency. A court’s failure to do so might be an abuse of discretion, as I think it was in the instant case.
So far as I can find, only twice has the O’Beirne case been cited, and then on the proposition that the irregularity of failure to give notice was waived by the filing of a motion to dissolve, which was also a ground on which the case was decided (Schaumburg v. Lindsay, 329 Ill. App. 190, 67 N.E.2d 409; Decker v. West, 273 Ill. App. 532). It is out of keeping with the many decisions which have been handed down since then and which reveal the concern of the courts for the abuse of proceedings for the issuance of injunctions without notice. The courts obviously came to realize the nature of the abuse and in no uncertain terms frequently expressed their disapproval. I feel that in the instant case, adequate steps were not taken to give notice to defendants.
I must register my dissent.