Roberts v. Fahs

Citations

• 36 Ill. 268

Syllabus

<p>1. Injuhotioit—dissolution of—assessment of damages. The act of 1861, authorizing Circuit Courts to assess damages, on the dissolution of any injunction, does not repeal the 11th section of the chapter entitled “ Ne exeat and Injunctions.” The two acts are not repugnant; nor does the latter in terms repeal the former.</p> <p>2. Under the 11th section of the chapter entitled 11 Ne exeat and Injunctions, ’ ’ on dissolving an injunction staying the collection of a money judgment, the court can only allow ten per cent, damages, upon the amount improperly restrained.</p> <p>3. It is error for the court to. include in the assessment of damages, upon the dissolution of an injunction restraining a money judgment, the amount of the judgment restrained.</p> <p>4. Injunotioit bond—recovery oíi. In a recovery on an injunction bond, the measure of damages is so much of the judgment as was restrained, and the costs in that judgment, and the damages assessed on the dissolution of the injunction, and the costs then awarded against complainant.</p> <p>5. Record — affidavits not appearing as part of record. This court will not take judicial notice of the fact, that the judgment enjoined had been reversed before the damages were assessed. Nor can affidavits of that fact, which do not appear to form a part of the record of the court below, be regarded as a part of that record, or be considered by this court. The cause will be tried in this court on the same record and facts that were before the court below.</p>