The theocrat. [volume] (Zion City [i.e. Zion], Ill.) 1914-1949, 1916-01-08
OPINION OF APPELLATE COURT

JOSEPH H. PAXTON, ct al, obbeHees
WILLIAM H. FABRY ct al APPELLANTS
Gen. No. 6221
APPEAL FROM LAKE,
CRMEs J.
Sometime prior to August 1914 appellant Bradford E. Sim
MONS was of building and lot which
located in ZION CITY Lake County, Illinois, and the other appel
ants William H. Fabry and NJ F. Ellis using part Of
it under lease from Simmons, as drug store in which they
also sold cigars resident physician had office in the build
ing On May r 1915 after this condition had existed for nine
months appees fourteen essees of residence
critics in the CITY Of Zion filed bill for Injunction to restrain
said building and applied the for
ocuoy decree enonng such pending the litigation The
application heard the bill and adavs in support thereof
and adavs of the defendants who appeared and without
swerng the BILL resisted the application decree entered
restraining the defendants until the further order of the
from using any part of said premises cigarette cigar
place for the manufacture sale of tobacco in
any form pharmacy apothecary shop drug
store place for the manufacture sale of drugs ed
nes of any kind the office residence of praccng ply
can surgeon other person actually engaged in the practice
of medicine surgery The defendants this appeal
and the question here whether the trial court was acting within
its sound judicial discretion under established legal principles in
granting the preliminary Injunction
The afdavts read the hearing incorporated the
record certified by the clerk of the There certificate
of evidence therefore that cannot take notice of
Mrae and Geert 1870 III app 6461 We will assume for the
purpose of this decision that the court consideration of the
bill and all the adavs fled warranted in finding that the
allegations of fact found in the bill The theory of the
bill is that John Alex Dowie in his lifetime prior to $780,
gained religious opposed to the business and practices
ed legitimate and civilized communities and still other
practices that generally condemned immoral and Illegal
that 1899 the site of ZION CITY selected the location of
the society in which such business and practices should be
hbed that in urterance of that purpose Dowe obtained title
to nearly all the land within the city limits and executed
leases for the of 100 years. containing restrictive
against said that building plan also adopted that
end and various publicly made and published by
Dowe procang such purpose that afterwards Dowe became
nsovent and with his property including large portion of the
land within the limits of ZION CITY, passed into the hands of
receiver under the control of federal court and the
stricton that resulted in maintaining such restrictions all
sold that the result of these facts is that the owners of land
in the City of ZION holding by under titles containing such
restrictive covenants bound by the covenants and also that
the of land there situated holding under titles in which
chased with knowledge OF the plan upon which the said city
founded
Appeees able required hundred pages type
writing to set forth in the bill the matters relied by them to
support their right Injunction Very full exhaustive briefs
and arguments presented here by for both sides
the legal effect of the allegations the BILL The briefs for
the most part devoted questions that must be determined by
court the final hearing of the calling for investigation
Of the merits of the that undertaken by either trial
reviewing courts in determining the proprey of preliminary
Injunction 1t urged in the arguments that of public
interest concerning the title to much property involved which
anifest true and such questions might better be left the
final hearing and be decided proceedings where the decree of
the trial reach the supreme review
ce may be that upon prop
ery Any decision that may render view that may
express binding effect on or property not included
this and there appeal from this this
There to be dearh of authority in this state of
the questions here involved yet think the principles well
subject and decisions of other states Our supreme Court
People Grand Trunk Ry Co. 232 Ill 292 quoting from former
case said speaking of the remedy by injunction: The tendency
be greatly abuse it, The appellate of
district in Young Federal Union Surety Co. 1873 ILL., App 27S
cited Beach njuncons Sec 10 and High Inuncton Sec
IS the proposition that the merits of the passed
on IN considering preliminary Injunction but the should
inquire whether less harm will result the enoned party he
should be finally victorious than would the complain
ant from the absence of the injunction he winning party
and quoted from Russell V. Farley los u. S. 433:
1T settled rule of the of chancery in actions
applications for njuncons regard the comparative injury
which would be sustained by the defendant if Injunction
granted and by the complainant if refused Kerr
nunctlons Z9 ZlO and the legal right doubtful either in
point OF law fact the always reluctant take
course which may result in material injury to either party
And from the City OF Newton V. Lewis, rs Goa 161:-
when the questions to be ultimately decided serious and
doubtful the legal discretion of the judge granting the writ
to the moving party will be certain great rreparabe if the
motion denied while the inconvenience oppos
party will be nconsideabe and may well be Unidentified by
proper bond if the injunction is granted"
1t said in A. E. Enc of Law VOL TO- page 346 pre-
nary injunction sometimes be properly refused upon the
facts which would entitled the party of right niunc
ton on final hearing It is said p Cyc page 74O the object
OF preliminary injunction is "o maintain the quo
maintain property its existing condition. prevent further
impending njurynot determine the right ITSELF On page
/lt will not be granted where is apparent that
injury at all will occur And page 749"Creat caution
to be used in issueng mandatory njuncions The
panant must make out clear free from doubt and dispute
On page 751-The issuance of temporary Injunction
maintain the status quo depends chiefly upon the relative
venence to be caused the parties