Opinion
Gen. No. 44,499.
Opinion filed December 15, 1948. Released for publication January 5, 1949.
1. SAVING QUESTIONS FOR REVIEW, § 1 — necessity of urging points before chancellor. A litigant who does not urge his points before chancellor cannot do so on appeal.
See Callaghan's Illinois Digest, same topic and section number.
2. SAVING QUESTIONS FOR REVIEW, § 51fn_ — interlocutory order entered on ex parte application. An uncontested motion for a temporary injunction was an "ex parte application" within meaning of Supreme Court Rule 31; providing that where an interlocutory order or decree is entered on an ex parte application the party proposing to take an appeal therefrom shall first present, on notice, a motion to vacate order or decree to court that entered it; hence defendants' appeal from order for temporary injunction was dismissed where defendants did not comply with rule (Supreme Court Rules, Rule 31).
Interlocutory appeal by defendants from the Circuit Court of Cook county; the Hon. LEONARD C. REID, Judge, presiding. Heard in the third division of this court for the first district. Appeal dismissed. Opinion filed December 15, 1948. Released for publication January 5, 1949.
STEPHEN LEE, of Chicago, for appellants.
WILLIAM E. COLLINS, of Rockford and HAROLD W. HUFF, of Chicago, for appellees.
Plaintiffs filed a complaint praying, among other things, for an injunction, and served notice on certain of the defendants that they would move for a temporary injunction. When the motion was presented no one appeared in opposition. The court thereupon entered an order for a temporary injunction. Certain defendants appeal.
Rule 31 of the Supreme Court provides that where an interlocutory order or decree is entered on an ex parte application, the party proposing to take an appeal therefrom shall first present, on notice, a motion to vacate the order or decree to the court that entered such order or decree, and that appeal may be taken if the motion is denied, or if the court does not act thereon within seven days after its presentation. In the instant case there was no attempt to comply with this rule. A litigant who does not urge his points before the chancellor cannot do so on appeal. Appellants seek to avoid the application of the rule by arguing that since notice was served the interlocutory order was not entered on an ex parte application. In City Nat. Bank Trust Co. of Chicago v. Davis Hotel Corp., 280 Ill. App. 247, 251, we said, on authority of State v. Dickmann, 175 Mo. App. 543, 157 S.W. 1012, that an order is said to be ex parte when it is taken or granted at the instance and for the benefit of one party only, and without notice to, or contestation by, any person adversely interested. As the motion for the injunction was not contested, we hold that it was an ex parte application within the meaning of Rule 31. For failure to comply with the provisions of this rule, the appeal is dismissed at appellants' costs.
Appeal dismissed.
KILEY and LEWE, JJ., concur.