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Opinion of the Court.

WILLIAM W. DEATHERAGE et al.

v.

JOSEPH R. ROACH.

PRACTICE-withdrawing papers from the files. A paper in a cause, when filed with the clerk, is a file of the court, and should not be withdrawn without leave of the court. But where a declaration, after being filed, was withdrawn from the files by the plaintiff's counsel, but restored to the file before the time for the defendant to plead had expired, and it not appearing that the defendant had any defense of any kind to the note sued on, or had sustained any injury: Held, a judgment in favor of the plaintiff would not be reversed for the refusal of the court to continue the cause for this irregularity.

APPEAL from the Circuit Court of Morgan county; the Hon. CYRUS EPLER, Judge, presiding.

This was an action of assumpsit, by Joseph R. Roach against William W. Deatherage and others, upon a promissory note. Messrs. MORRISON, WHITLOCK & LIPPINCOTT, for the appellants.

Mr. JUSTICE BREESE delivered the opinion of the Court: This was assumpsit in the Morgan circuit court, resulting in a judgment for the plaintiff.

The only point made on this appeal is, the refusal of the court to continue the cause on defendant's motion and affidavit, alleging that the declaration was not filed ten days before the first day of the term to which the writ was returnable.

By the bill of exceptions, it appears the declaration bore the file mark of the clerk as of the day the summons issued, which was October 27, 1874, more than ten days before the first day of the term. But it was alleged by the defendants, and admitted by the plaintiff, that on filing the declaration. the plaintiff had withdrawn it from the file and taken it to his office for safe-keeping, saying he would produce it whenever it was wanted. His counsel gave as a reason for thus withdrawing the declaration, that papers in a suit between the same parties, one of the defendants being the clerk of the 21-76TH ILL.

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court, had been lost, and he had been put to great trouble and delay in supplying the loss.

It is known to be a common practice, but loose and improper, for the clerks to permit papers to be withdrawn by counsel after they are filed, and we would not desire to encourage such a practice. A paper, when filed with the clerk, is a file of the court, and should not be withdrawn without leave of the court. In many cases much injury might result from

such practice.

In this case, the declaration was filed in time, and restored to the files before the time for pleading had expired, and it nowhere appears, nor is it alleged by appellants, they had any defense of any kind to the note. Nothing of the kind was pretended. They do not allege, by this withdrawal they were prevented from pleading, or that any injury of any kind has resulted to them.

Under such circumstances. appellee having an unquestioned claim to the amount of the note and damages, and appellants not having been prevented of making any defense they might have had, by this irregular act of appellee's counsel, we therefore affirm the judgment.

Mr. JUSTICE SHELDON dissents.

Judgment affirmed.

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WILLIAM WAHLE

V.

LOUIS REINBACH.

1. CHANCERY-abating nuisances. A court of equity will always act with reluctance in abating a nuisance, and seldom until it has been found to be such by a jury. But where the injury resulting from the nuisance is in its nature irreparable, as, when loss of health, loss of trade, destruction of the means of subsistence, or permanent ruin to personal property will ensue, from the wrongful act or erection, courts of equity will interfere by injunction.

Statement of the case.

2. SAME-preventing the creation of nuisance. A court of equity will not, in general, interfere until an actual nuisance has been committed; but it may, by virtue of its jurisdiction to restrain acts which, when completed, will result in a ground of action, interfere before any actual nuisance has been committed, where it is satisfied that the act complained of will inevitably result in a nuisance.

3. SAME-irreparable injury defined. By irreparable injury is not meant such injury as is beyond the possibility of repair, or beyond possible compensation in damages, or necessarily great injury or great damage, but that species of injury, whether great or small, that ought not to be submitted to on the one hand or inflicted on the other; and because it is so large on the one hand or so small on the other, is of such constant and frequent recurrence that no fair or reasonable redress can be had therefor in a court of law.

4. NUISANCE-privies. Privies are regarded as prima facie nuisances, and, although necessary and indispensable in connection with the use of property for the ordinary purposes of habitation, yet, if they are built or allowed to remain in such a condition as to annoy others in the proper enjoyment of their property, by reason of either the noisome smells that arise therefrom or by the escape of filthy matter therefrom upon the premises of another, or so as to corrupt the water of a well or spring, they are nuisances in fact.

5. SAME-defined generally. Any business, however lawful, which causes annoyances that materially interfere with the ordinary comfort, physically, of human existence, is a nuisance that should be restrained; and smoke, noise and bad odors, even when not injurious to health, may render a dwelling so uncomfortable as to drive from it any one not compelled by poverty to remain. The discomfort must be physical, not such as depends upon taste or imagination. But whatever is offensive physic ally to the senses, and by such offensiveness makes life uncomfortable, is a nuisance.

6. SAME facts of this case. Where a defendant was about erecting a privy on his own lot, about eight feet from the dwelling house and cellar, and within twenty feet of the well of the complainant, it was held, that a bill for an injunction to restrain the completion of the same would lie, there being no adequate remedy at law for the injury that would result therefrom to the complainant.

WRIT OF ERROR to the Circuit Court of Morgan county; the Hon. CYRUS EPLER, Judge, presiding.

This was a bill in equity, filed by the defendant in error against the plaintiff in error, to restrain the erection of a

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Opinion of the Court.

privy near to the residence and well of the complainant.

The court below decreed the relief sought.

Mr. OSCAR A. DELEUW, for the plaintiff in error.

Messrs. DUMMER & BROWN, for the defendant in error.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This is a bill in equity, to enjoin a threatened nuisance. The substantial allegations of the bill are, that complainant is the owner and occupant of a certain lot, in the town of Jacksonville, on which is the residence now and for some time past occupied by himself and family; that respondent has become the owner of an adjoining lot, on which he is proceeding to construct a privy, within eight feet of complainant's dwelling house and the cellar thereunder, and within twenty feet of the well of water from which complainant and his family are supplied with water for drinking and cooking and other domestic purposes; that the privy is being built by respondent for the use to which such structures are appropriate; that if he is permitted to complete and use it, it will become an intolerable nuisance to complainant and his family, and that, from its proximity to his dwelling house, cellar and well, it will become injurious to the health and comfort of himself and family, and prejudicial to the enjoyment of his property.

It is further alleged, that respondent has no authority to construct the privy at this particular place, for the reason that it is on ground reserved by a prior owner of the property for an alley; that he has an abundance of room on his own premises for its location, so remote from any building that no inconvenience would result from it; that if the privy shall be completed and used, as intended, complainant and his family will suffer therefrom irreparable injury to their comfort and health, and that he has no adequate remedy at law

Opinion of the Court.

The answer of the respondent admits the contemplated construction of the privy at the place alleged in the bill, but denies all the other allegations.

The court, on hearing, found the allegations of the bill to be true, and decreed as therein prayed.

Having given the evidence an attentive consideration, we see no cause to disagree with the conclusion of the court as to its effect.

The question, then, to be determined is, do the allegations in the bill authorize the decree?

It is argued by the counsel for complainant, that, before an injunction can issue in such cases, it must be determined by a jury, on a trial at law, that a nuisance in fact exists. It is true, and has been so held by this court in the cases to which he refers, that a court of equity will always act with reluctance in abating a nuisance, and seldom until it has been found to be such by a jury. Dunning v. City of Aurora, 40 Ill. 481; Bliss v. Kennedy, 43 id. 67; Town of Lakeview v. Letz, 44 id. 81. These cases, however, recognize the doctrine, which is supported by all the authorities on this branch of equity jurisdiction, that where the injury resulting from the nuisance is, in its nature, irreparable, as, when loss of health, loss of trade, destruction of the means of subsistence, or permanent ruin to property will ensue from the wrongful act or erection, courts of equity will interfere by injunction, in furtherance of justice and the violated rights of property. Waterman's Eden on Injunctions, 259, 4 note; Kerr on Injunctions, 339. It is said, in Kerr on Injunctions, ubi supra: "The court will not, in general, interfere until an actual nuisance has been committed; but it may, by virtue of its jurisdiction to restrain acts which, when completed, will result in a ground of action, interfere before any actual nuisance has been committed, where it is satisfied that the act complained of will inevitably result in a nuisance." See also Wood on the "Law of Nui

sance," 812, sec. 769.

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