*1 522 February 22 bail was
Fеbruary and likewise stated the defendant’s forfeited. (Ill. 7(g) Section of Criminal of 1963 the Code Procedure 110 — par. 7(g)) precludes judgment
Rev. Stat. ch. bond 110 — if within appears days entry forfeiture the defendant surrenders an order declaring grace period applies irrespective forfeiture. This appears the defendant and surrenders. circumstances (People 1978), Dist. Mitchaner
Here, custody entry the defendant was within hours of bond Mitchaner, as the court concluded forfeiture order. purpose served forfeiture. reasons, of the Circuit Court foregoing
For criminal Randolph County finding guilty indirect to that court with contempt the cause remanded forfeiting оrder bail instructions that the be vacated.
Reversed and remanded with directions. MORAN, P.J., JONES, J.,
G. concur. FENDER, Plaintiff-Appellant, LOUIS SOUTHWESTERN G. ST. DONALD CO., Defendant-Appellee.
RAILWAY Fifth District No. 77-243 July Opinion Rehearing filed denied *2 MORAN, J., G. dissenting. P. Cohn, Louis, Cohn, Carr, Korein, Rrennan,
Joseph of East St. for Kunin of appellant. Walker, Dahlmann, Ralph Gagen, D. L. all Walker & Robert and Donald of J.
Williams, Helleville, appellee. of for Mr. KUNCE delivered the of the court: JUSTICE This is an appeal by of the Circuit St. County dismissing Clair his action under the Federal Liability (45 seq., Act Employers’ U.S.C. et hereinafter referred to as §51 FELA) the basis of res on Fender, injured Donald December plaintiff, G. on defendant, employment the course of as a switchman for
St. Railway Louis Southwestern Co. The occurrence out which Texas, action place arose took was a resident place corporation principal defendant was Missouri with its filed plaintiff’s original business in Texas. The FELA action was in the 1,1968. 10,1969, May January Circuit St. Clair County Court of on On court the defendant’s motion to decline the basis non conveniens. fоrum plaintiff perfected appeal to this but did not refile his 26,1970, FELA this court other court. On reversed (125 App. decision the Circuit Court St. Clair appeal defendant’s for petition leave May supreme granted, Court was and on court that the trial exercised discretion Ill. 2d grant motion to dismiss. was denied October petition rehearing 4, 1971. 12,1971,
On FELA Oсtober commenced a new a Texas After some had taken the defendant filed a discovery place, *3 things, motion that the summary judgment, alleging, among for other three-year plaintiff statute had did expired. FELA of limitations an summary judgment; the neither answer nothing oppose to motion for (in Illinois suit competent proof prеvious of the motion nor tolled) was filed. attempt show that the limitation had been to 1973, 28, granted summary on December the Texas court 6, 1974, Court of Civil the Texas for the defendant. On June court, the trial the court Appeals affirmed the decision of sustaining it in below basis of the before justified had been the record had summary judgment; the the court noted motion for to show that the failed the with evidence oppose to motion Louis, v. St. (Fender not apply. the statute of limitations would defense of 2d On Ry. (Tex. App. 1974), Civ. 513 S.W. Southwestern the the Court of Texas denied November writ of certiorari was petition plaintiff’s petition for writ of error. The 14, 421 April denied the United Court on by States 778, 43 95 L. Ed. 2d S. Ct. 23, оriginal the than seven after On December more filed, present the Circuit complaint the filed the chronology the of complaint recited the Court of St. Clair denying prior alleged that the defendant was litigation,
525 representations of its plaintiff’s right prior the to the action because bring charged to a the courts of Illinоis that available of limitations in the defendant’s assertion of the defense of statute courts, in light representations the Texas of those to the Illinois dismiss, constituted motion asserted that fraud. defendant’s to already all justiciable complaint fully issues averred had been 16,1977. finally adjudicated, appeal on March This followed. appeal, On allegations complaint reasserts the FELA pendency contends was tolled see prior actions the Illinois and Texas courts. We the threshold issue before us as whether the filed in 1975 was barred principles res and therefore dismissed defendant’s motion. judicata is origin;
Res
a
sound
judicial
doctrine of
reflects the
requirement of public policy
litigation
party
must cease after each
has
full and fair
all
pertinent
facts.
(Johnson
356, 340
v.
(1975),34 Ill.
3d
N.E.2d
cause
App.
68.) A
Johnson
adjudicated by
action once
competent jurisdiction
court of
cannot
again
tribunal,
tried
proceedings,
new
or a
before
different
except
prior adjudication. (People
direct action
set aside the
v.
(1947),
851;
Ill.
Kidd
398
(1962),
75 N.E.2d
v.
Schoenbrod Rosenthal
112, 183
36 Ill. App.
judicata
2d
N.E.2d 188.) The doctrine of res
extends
not only to
actually
what
original
decided
action but also to
every other
within
thing
knowledge
the parties
might
have
been
up
defense,
set
as a ground for relief or
and which could havе been
decided. Keim
565;
v.
57 Ill.
(1978),
App. 3d
Kalbfleisch
v.
(1967),
Menconi Davison
2d
N.E.2d 139.
However erroneous a
of a
decision
court of competent
be, it
is binding
all
upon
parties
appeal.
unless it is reversed on
(People ex
rel.
v.
McAllister
Ill.
East
Radice Antonacci
The res
judicata
prior
effect of a
mitigated by
the fact thаt
rests
law;
an erroneous
view
nor is the
of a
plea
value
determined
given by
reasons
the court
support
prior judgment. People Kidd;
Contractors,
F.
Pierog v. H. Karl
Inc.
(1976), 39 Ill.
The United States Constitution embodies the common law doctrine
*4
judicata
Const.,
IV, §1;
res
in the
(U.S.
full faith and credit clause.
art.
v.
(1977),
Brownlee Western Chain
App.
Co.
49 Ill.
3d
364 N.E.2d
926.) The Constitution requires
give
that each
faith
credit
State
full
the judgments
State;
of the courts of a
is as
in
judgment
sister
a
conclusive
every
it,
other court as it is in the one which rendered
and no other court
claim, issues,
can rehear any
or
previously
defense which was
or
decided
Carlson
the sister State.
to the court of
presented
been
which could have
926, 329 N.E.2d
Casualty
App.
Ill.
3d
Prestige
(1975), 28
v.
Woodstock,
Inc.
v.
(1975),
Telegraph
Telephone
Southern Bell
If a
merits,
he is not
him,
not a final one on
the adverse
an
he seeks
an action which
maintaining
subsequently
precluded
actually decided
however,
matters were
whatever
remedy;
available
litigation.
subsequent
be reexamined
prior
litigation
cannot
378; Hurst
1028, 325
(Foreman
v. Martin
App.
26 Ill.
3d
(1975),
cf.
532.) A statute of
306 N.E.2d
Papierz (1973),
v.
App.
Ill.
3d
only, and not
remedy
to affect
generally
limitations is
considered
674, 290
App.
Ill.
3d
right. (Cook
Britt
party’s substantive
holding that
State
of a court of one
a decision
the maintenance
рreclude
will
a statute of limitations
only if the
same claim
state on the
subsequent
of a
another
Laws
(Second)
Conflict of
(Restatement
applies.
statute of limitations
exists, prior
Comment b
§110,
remedy
than one
Where more
is res
statute of limitations
remedy
is barred
one
v. Met
judicata only
(Santucci
Construction
remedy.
as to that
ropolitan Sanitary
District
3d
case to
prior
in a
has been afforded
opportunity
where an
limitations, it cannot
a statute of
litigate
estoppel
to assert
question
action. House v. Maddox
(1977), 46 Ill.
relitigated
in a
later
Applying principles present these to the or any do not find concealment action was dismissed. We deception part on the misrepresentation or fraud or of an or be the basis reasonably which should have misled limitations. Defendant’s the statute of estoppel to assert the defense of adversary strategy raising sound the statute of the bar of asserting Illinois and later to the courts of alleges. as plаintiff fraud limitations in the Texas court did not constitute statute of defense of the assertion of the was not the defendant’s Rather, that summary judgment. which resulted limitations Texas Texas to the his case flowed from the failure to result there, procedural himself to he submitted By filing complaint court. rights. asserted that he should have laws of that forum. It wаs there defense here of relitigation bar principles in the Texas have been raised which could summary judgment motion for Davison; Dennis v. Silzer Menconi N.E.2d 1133. litigate the Texas case to afforded
questions of tolling of the estoppel statute of limitations and to assert statute of The remedy limitations. in an FELA in Illinois case is is the samе. Under these and Texas. The statute of limitations also circumstances, us to conclusion previously the authorities cited lead full and credit given that the decision of the Texas courts must be faith here. reasons, St.
For the the Circuit Court of foregoing County Clair is affirmed.
Affirmed.
JONES, J., concurs. MORAN, dissenting:
Mr. PRESIDING GEORGE JUSTICE J. St. Clair held that the circuit court After Illinois Court jurisdiction to decline County justified was defendant’s motion granting In conveniens, in Texas. filed suit the basis non on of forum trial the defendant averred securing ruling from the favorable abe that Texas would its motion accident Texas and happened that the Clair suit than St. place try plaintiff’s much more to law convenient County, When the filed suit Illinois. run of limitations had
persuаded
Texas courts to hold
the statute
plaintiff’s
file
Illinois. Thus the defendant
suit while was on
Illinois
pursuing this
broke faith with
courts of
course
plaintiff’s
because the
case under the doctrine of
dismissal
must,
with
as it
was another forum
presupposed,
there
Corp. grant
Oil
capacity
to obtain
relief. Gulf
Gilbert
L. Ed.
judgment” territory is entitled full faith and United States or of State or Constitution, IV, States article section credit this State. The United give judgments that State must full faith and credit to provides courts “on only judgments States. rendered competent courts of othеr & D. (A. Ehrenzweig faith and credit. merits” are entitled to full Louisell, A limitations and Federal statute of Jurisdiction—State extinguish than to them. This plaintiff’srights rather is said to restrict succinctly stated in Cook v. Britt rule is 908: act limitations is an that a statute of generally agreed “It is *6 brought shall be legal action limiting the time within (8 Ill. right.” not a substantive remedy only affects 674, 676.) finding expressly limited tо the Texas court
The decision of this statutory period. Since brought within had not been action merits,” effect on can have determination was not “on in St. Clair subsequent later action on merits and bars a summary judgment A is on the judgment is action, summary basis for the except where the same cause of rather remedy of the only availability goes matters which one of the Casad, 115-16 right. (R. Res of the than to the existence Judicata limitation are statutes of that under Texas law significant especially destroying the remedy only without affecting as regarded likewise 601; S.W.2d 1972), (Tex. Civ. Worthington right. Lawrence 1968), (Tex. Civ. R.R.Co. v. Southern Missouri Pacific Pacific 430 S.W.2d on the governs law that Federal аgreed courts are
The Federal
Employers’
of the Federal
limitation
whether the
it.
asserting
Act is tolled or
Liability
424, 13L.
U.S.
Ed.
R.R.
v. New York Central
Burnett
R.
Cir.
Line Co.
1050;
v. Atlantic Coast
Scarborough
85 S. Ct.
(4th Cir.
R.
Line Co.
935; Scarborough v. Atlantic Coast
1951), 190 F.2d
1932),58 F.2d
(8th Cir.
Ry. Co.
Bell v. Wabash
1953), 202 F.2d
action is barred
cause of
plaintiff’s
that
majority holds
effect,
statute
Thus,
holds
majority,
cause of
the timе
tolled
limitations was not
is in direct conflict
holding
this
and Texas.
file
was on
United States
law set forth
with the
424, 13L. Ed. 2d
R.R.
York Central
Burnett v. New
The Burnett case by was followed the United States Court of Appeals Eighth for the in Billings Chicago, Circuit & Rock Island R.R. Cir. 1978), 581 F.2d In Billings the Court of Pacific Appeals held that where the plaintiff timely liability filed a Federal action in a State court of jurisdiction, process service defendant, made upon State action was later dismissed because venue, improper bringing where defendant was not surprised by action, of the Federal the statute оf limitations was tolled while the suit was on file. all knew at that defendant bar, but there is no at
In the case is no him and there against asserting a claim plaintiff times policy have relied could that defendant way conceivable statute. in the limitation repose embodied Storage & Martin Co. v. In Geneva Construction Transfer court said: supreme our 4 Ill. 2d statutes, in construed limitation, must be like other “Statutes of is to such statutes policy of objectives. The basic their light circum investigate the. a fair afford a defendant while predicated him is liability against upon which stances here.” fully served has been purpose are accessible. That facts 289-90, Ill. 2d by Mr. following
The сourt then referred to the
observation
Justice
Kinney
in
R.R.
Holmes New York Central Hudson
67 L. Ed.
Except аpproximately for a Texas courts since December pending has been either Illinois or have than 10 when the cause of action accrued. More has complaint, yet no court elapsed since first filed longer is a forum that Texas no hearing him a on the merits. is evident dictates fairness brought. this action Fundamental reverse the decision Accordingly, I would day have his plaintiffs com- County dismissing of St. Clair of the circuit court plaint.