*1 tion; are the who suffered the burden (4) persons incidence of the fee. The of the circuit illegal judgment court must further be modified to that the provide plain- tiffs and the class members are entitled to an accounting all of said fees illegal from and after involuntarily paid effective VII, date article of the 1970 9(a), Illinois Constitution. judgment circuit court of Cook
modified in the manner stated and as modified is affirmed. The cause is remanded to the circuit court for further proceedings.
Affirmed modified and remanded. MR. SIMON took no in the considera- part JUSTICE tion or decision of this case.
(No. 53323. al., Petitioners, v. RINCKER HORN et GAIL CHESTER al., et Respondents. Rehearing
Opinion February 1981. denied 1981. March *3 SIMON, J., part. took no
GOLDENHERSH, C.J., dissenting. Grabb, Bennett, & R. of of Cini Ryan, Ryan,
Stephen Mattoon, for petitioners. Owen, Parish, F. of and Darrel
Robert D. Owen Decatur, for Roberts, & of respondents Susler Murphy, Rincker and Dale Rincker. Gail Belleville, for respondent
C. E. Heiligenstein, of Earl Bass, estate Anne administratrix Lynette Bass, Jr. James Winters, Prince, Featherstun, A.
Glen Armstrong, Decatur, & for respondent Featherstun Johnson, Co., a Tire & division of the Firestone Electric Wheel Rubber Co. Randle, Potter, P.C., of A. & Londrigan
Craig Robertson, for Kenneth respondent Eugene Springfield, the estate of Rose Robertson. administrator Crystal Rooks, Pitts, Bush, of Fulla- Plaza and Robert Wayne Poust, Farm for White respondent Chicago, gar Co., of White Motor Co. a division Equipment of MR. RYAN delivered the opinion JUSTICE court: Horn, Chester and Rita Horn petitioners, file an in this court re- leave to original petition
granted it to exercise its administrative general super- questing and also a writ visory prohibition authority praying for a Petitioners are defendants writ of mandamus. Clair, and Madi- filed in Shelby, separate actions, be- described in more detail son counties. Those low, seek relief for and death resulting injuries personal Various motions in from collision in County. transfer or consolidate several causes to venue *4 denied, filed their original been petitioners petition having all as the in this court. Named parties, respondents three ac- defendants, and involved both plaintiffs tions, defendants the the with exception corporate counts. Thomas various joined liability Judge products O’Donnell, P. of St. circuit Clair County, Judge judge Barr, and circuit Madison Judge County, judge Joseph J. II, Vernon L. Plummer Shelby County, judge also named as herein. Basically, respondents peti- seek an order the cases tioners from court transferring in St. Clair and Madison Shelby counties all those cases with Shelby case. 19, 1976, a On November Earl Bass was operating vehicle a road south- motor mile along approximately Cowden, west of the He town was Shelby County. a Rose Robertson. accompanied by Crystal passenger, direction, While in a the Bass vehicle proceeding northerly a disabled on east farm sideswiped wagon standing side of the road. The owned was Chester wagon by Horn, them, Rita and contained corn owned as well by accident, Tennessee Sollis. At time the corn was hauled to a this first colli- grain elevator. After being sion the Bass crossed the vehicle center of road and collided southbound vehicle driven Dale being Rincker, who was also Gail accompanied by passenger, Rincker. Bass and his Robertson, died as a re- passenger, sult of received the accident. injuries 10, 1978, March
On filed the Rinckers first law- suit out of this accident in the circuit arising That suit named as County. defendants Chester Horn; Horn; Rita estate; administrator Bass Tennessee Sollis. The administrator of the Bass estate then action in the circuit court of St. Clair on 16, 1978, March Horn; as defendants Chester naming White Farm Sears, Equipment Roebuck and Company; and Electric Wheel Company; Company. these three
against defendants are corporate based on the theory products defend- liability, corporate *5 ants and distribution chain of manufacture being of the farm and its adminis- wagon parts. component filed trator of the Robertson estate then suit on July That action in the circuit court of Madison County. Horn; Rincker; the ad- named as defendants Chester Dale estate; of the White Farm ministrator Bass Equipment Sears, the and Roebuck and Company. Finally, Company; filed of Rinckers a cause action in Shelby County separate 16, 1978, White Farm on November defendants naming Sears, and Roebuck Company; Company; Equipment action, last based a Electric This Wheel upon Company. the first was consolidated theory, liability products suit filed the Rinckers. previously accident, Bass, Anne of the Earl
At time Lynette Bass, Chester Bass, of the estate of Earl administrator Rincker, Horn, Rincker, Rose Horn, Rita Dale Gail Crystal Robertson, Robertson, of Kenneth administrator Eugene Robertson, Rose and Tennessee Sol the estate of Crystal of these and all lis all residents County, were Shelby still in now reside living Shelby County except parties Bass, the estate Earl Anne administrator Lynette suit was Bass, before her who moved to St. Clair are defendants The three filed in that county. corporate in of all three counties they “doing residents 1977, ch. Ill. Rev. Stat. in those counties. business” (See witnesses All post- par. pre-occurrence in witnesses, who and all of the authorities occurrence accident, reside in Shelby County. vestigated Homs taken were Discovery depositions for the Rincker in Shelby attorney plaintiffs 23, 1979, Horn was Chester on 1978. On case July April to take discovery notice deposition served with 1978, the case. On March attorney St. Clair County Rincker Madison County the defendants three witnesses a notice to take evidentiary depositions for the Horns The attorney resided in County. who decided take of the same discovery depositions It was a court order con- witnesses. obtain necessary until tinue the witnesses evidentiary deposition after the taken. The were discovery depositions discovery taken, these three witnesses were and later depositions evidence two of same witnesses depositions Thereafter, taken. notices were to take the served evidence of these for the same witnesses by depositions attorney St. Clair There are case. several plaintiff other witnesses who will be to both subject discovery evidence in each of the three depositions counties. *6 a filed motion in petitioners Shelby (Horns) the to consolidate and filed cases motions
County in St. Clair and Madison to transfer venue County County in those to cases denied Shelby The motions were County. each court in its It case. by respective approximately 100 miles from both Madison and Shelby to County St. Clair counties. In addition to the entailed in hardship of each witness because taking multiple depositions of the counties, three cases in three it is separate separate that, also should three cases to argued trial go sepa- there be will a considerable waste of and in- rately, time convenience caused to the witnesses traveling courts, and different it is there would be a argued generally be to unsatisfactory should it use presentation necessary the evidence instead witnesses depositions having It is also that testify argued personally. by trying cases inconsistent verdicts result. separately, may
It from the appears allegations petition answers filed that the of each court by respondents ruling below with to to venue regard transferring was correct. The to “transfer venue” petitioners sought in the Clair and Madison motions made after their answer had been filed in case. long each The motions were therefore untimely, objection any 1977, venue was waived. Rev. Stat. ch. improper (Ill. Lines, Truck v. United Biscuit Co. Voss par. 8(2); fact, there Ill. In
Inc. appears since venue motion, such a however timely, no basis for Clair both the and St. in Madison was proper de There no allegations corporate actions. bad faith for the fixing fendants were in purpose joined statute those counties. Our venue provides: in venue Act, every provided action “Except in as otherwise any county in of residence (a) be commenced must probable joined good defendant who is faith purpose obtaining against a him judgment for the cause solely fixing venue in that purpose and not or county, county in which the transaction (b) ac- part out of the cause of some thereof occurred which arose. tion State, If all are nonresidents of the defendants may any county.” Rev. (Ill. commenced Stat. action 110, par. 5.) ch. venue, is considered For purposes private corporation it business.” to be a resident of which “doing any county (I substantial Stat. ch. No Rev. par. 6.) ll. each to the fact that was made corpo challenge apparent of each county rate defendant in this case was “resident” involved. to the extent these motions
Similarly, sought actions, denied. the several consolidate they properly “in that actions The Civil Practice Act *7 pending provides 51 of court” be consolidated. Section the same may states: Civil Practice Act severed, pending in the may actions “An action convenience, consolidated, may be aid to court an
same prejudice to a substantial whenever it can done without 1977, 110, par. ch. right. (Emphasis added.) (Ill. Rev. Stat. 51.) v. ex rel. Petroleum Co. (1976),
In People Phillips Gitchoff a Madison rescission of Ill. this court ordered 2d with a court order which compliance prevented Our a Macon order entered County judge. consolidation decision in turned on the of one circuit propriety Gitchoff court In that order another circuit court. ignoring stated we that not we were deciding specifically of whether Madison counterclaim and question the Macon action were same “pending court.” Under the section 51 Civil provisions Act, Practice a trial to consolidate judge authority given when are the same in court. only they pending The trial has broad discretion in considering Atchison, motion consolidate. Prince v. (See Topeka Santa Fe Co. 76 Ill. Ry. 3d We App. decide, however, need not whether the motions denying to consolidate these cases would been an have abuse of that discretion had all the cases been before the pending court, same because here the cases in three were pending counties, different circuits, and, different conse in three “different courts.” quently, It is that the Civil does not Practice Act plain give circuit court the actions consolidate authority pending If the State. that the intent of the any county there would be no reason for legislature, limiting to consolidate to in the same authority Also, court. the use the same “in court” is phrase an indication that the Civil Practice Act considers that the State has several courts at the trial This is consistent level. with the VI, of our 1970 Constitution. Article provisions that section each circuit shall have provides court. VI, Article section providing although in a vested court and judicial power supreme appellate court, uses the term “courts” when it refers to the circuit Also, VI, courts. article refers to courts and not ato circuit court. A of these various sections single reading of article VI of our constitution leads the conclusion circuit courts on a administratively organized basis and that there is one circuit court for geographical each Act, circuit. Section 51 of the Practice Civil
148 in the same consolidation of actions
authorizing pending court, an order a court does not authorize the entry in other circuits. in one circuit consolidating circuit, is in Madison is in the third County County circuit, is in twentieth the fourth Clair St. County to consolidate circuit. the courts attempt by Any an intercircuit consolidation these cases would require Act. order, not the Civil Practice which is authorized by Therefore, the need for regardless cases, it. no court had the to order power have course would for
Normally, petitioner proper 48 for dismissal under section been move involuntary 1977, 110, ch. the Civil Practice Act. Rev. Stat. par. (Ill. first, action was Since Shelby County peti 48.) the St. Clair tioners have moved dismiss might both those cases Madison by claiming cause substantially the same was involving pending, 1977, Rev. Stat. the same in Shelby County. parties, (Ill. sub 110, In held that ch. we Gitchoff, par. 48(1)(c).) is and causes sufficient stantial between similarity parties ex dismiss. a section motion to support (People 48(1)(c) 65 Ill. Petroleum v. 2d rel. Co. Phillips (1976), Gitchoff Here, in the Madison plaintiffs 255.) additional counts Clair case added on the defendants based theory against corporate However, we need not decide whether products liability. to dismiss under the Civil motion 48(1)(c) Practice should be allowed under Act these circumstances.
Petitioner, relief noted, has previously prayed of the writ of mandamus. writ mandamus by way shown. issue where a clear to the writ will only right ex Ill. rel. v. 12 Hoagland Streeper 2d (People (1957), 218; v. ex rel. Inc. Hospital, People Norwegian-American Also, Ill. the writ Sandusky 21 2d (1961), 300.) not to correct errors. available mere judicial (Baltimore 334; v. Ill. Ohio R.R. Co. Mosele 2d (1977), ex rel. Continental Air Co. v. Strouse People Transport 41 Ill. In was not a this case there 2d clear of the circuit court of to enter duty Shelby County *9 an order cases other pending fact, above, counties. In as indicated there no author was so. A do writ of mandamus is therefore not ity appro priate. have also asked this court to exercise petitioners
its administrative and general supervisory authority VI, 16, article of our constitution and granted by order the Clair and Madison cases County transferred to and consolidated with the Shelby County in that court. ex rel. Ket pending People (See Kelly, Furth, Inc. v. 231; ting, Epstein 229, 61 Ill. 2d (1974), ex rel. Bowman People v. Woodward 61 Ill. 2d (1974), 231, It is our 232.) holding prayer granted, and in the exercise of our administrative and general super we order visory authority St. Clair and the Madison involved herein transferred to and consolidated Shelby County with the case that court. We are to do so persuaded by reasoning the doctrine of underlying non conveniens. forum stated, the doctrine Succinctly is founded in considera tions of fairness to the and litigants effective administra tion of In justice. considerations, applying decline to may exercise over a case jurisdiction properly it, before whenever it that there is another forum appears that can better serve the convenience of the and litigants the ends of promote ex justice. rel. (People Compagnie Nationale Air France 90; v. Giliberto 74 Ill. 2d (1978), Adkins v. Rock Island Chicago, & R.R. Co. (1973), Pacific 511; 54 Ill. 2d v. Crucible Lonergan Steel Co. America 599; 37 Ill. 2d Cotton v. (1967), Louisville Nashville R.R. Co. 144; 14 Ill. v. Madden (1958), Whitney 2d 185, 400 Ill. cert. denied (1948), 335 U.S. 93 (1948), L. Ed. 69 S. Ct. Factors to be in con- weighed 150 the doctrine non con-
sidering application forum are stated in Oil v. Gilbert veniens Corp. Gulf 501, 508, Ct. 843: U.S. L. Ed. 67 S. considered, “An interest to be and the one likely to be most interest pressed, private considerations are the relative litigant. Important ease of access to sources availability proof; for attendance of unwilling, compulsory process and the cost of attendance willing, obtaining witnesses; if view view possibility premises, action; to the all other would appropriate that make of a case trial easy, practical problems will ***. The court expeditious inexpensive. fair relative obstacles weigh advantages not, trial. It is often said plaintiff may forum, ‘vex,’ ‘harass,’ choice of inconvenient ex- defendant him ‘oppress’ inflicting upon *10 or to to trouble not his own necessary right pense his pursue remedy.” are not here or
We trial court’s reviewing granting of a motion to dismiss based non con on denying forum Indeed, a motion not been veniens. such have may appro in this case. Cotton v. Nashville Louisville priate (See 159; 14 v. R.R. Co. Ill. Crucible 2d (1958), Lonergan 37 Ill. Never Steel Co. America 2d of theless, find we of the doctrine underlying principles in to whether exercise our deciding supervisory helpful Here, and in what of the factors manner. all powers recog in Oil that nized indicative doc Corp. being Gulf should trine favor of apply weigh heavily earlier, these cases As was stated Shelby County. witnesses, of the and the accident most proofs, parties, are local itself County, exception: with Shelby estate has to St. Clair the administratrix of Bass moved since the accident. Maintenance of three separate County counties, actions those when separate
151 accident, the effi- arose out of a would frustrate single Moreover, allow cient administration justice. and Madison the St. Clair plaintiffs proceed actions, of the County County independent Shelby pro- would facilitate the inconsistent ceedings, possibility verdicts, trials and cause unnecessary duplication effort, countless waste hours proofs, judicial no foreseeable The needless would promote advantage. confusion and of effort and caused duplication expense same be of the should witnesses multiple deposing avoided. best This can if the entire accomplished litiga- tion is under the of one direction court. supervision it that is ordered case No.
Accordingly, 78—L—209 of the circuit Clair No. 78—L—587 of court Madison transferred to and consolidated with Shelby County L—26, Nos. 78—L—3 and which 78— have been heretofore consolidated. The circuit court of will be free to so sever for trial Shelby County many such of these consolidated cases as deems neces- parts it in order to sary the efficient promote administration of justice.
Since the oral court, of this case in this argument we been have informed have been filed under petitions Act sec. U.S.C. 101 et II Bankruptcy (11 seq. (Supp. in the United States 1978)) Court Bankruptcy Northern District Ohio wherein White Farm Equipment is named as a debtor. Company White Farm Equipment is a defendant in some of the Company cases involved in Section proceeding. Act Bankruptcy (11 U.S.C. sec. II (Supp. provides 1978)) petition filed under sections or 303 as a operates stay *11 certain a proceedings debtor. order against pending which entered we have is directed to the courts wherein these cases are and not the debtor White against Farm The circuit Equipment court Company. however, for must make provisions
County, appropriate Act when of the Bankruptcy complying in that court. these cases are consolidated stated, for writ the reasons herein the For petition denied, and the mandamus supervisory prohibition the named cases order this court entered transferring consolidating the circuit court Shelby County the cases above indicated. denied; supervisory
Writ order entered. took in the considera- no MR. SIMON part JUSTICE of this case. tion or decision GOLDENHERSH, CHIEF
MR. dissenting: JUSTICE file the I dissent. I leave opposed granting now that it should am of original petition opinion be dismissed.
With admirable candor concedes majority for no to be in the statutes there is basis found venue has and that the doctrine non conveniens order forum of a cause within been effect transfer never applied Nevertheless, it has State. without authority supporting cases in a order issued supervisory selected over objections county litigants of the others. out of same transaction
Multiple arising annals The venue not new of this State. provisions of a counter- and the absence mandatory provision that such Act indicate claims Civil Practice clearly suits are not but are to Law- only permissible expected. been able to determine have agreement yers ordinarily without for the orderly procedure depositions taking witnesses, and there is no examinations repetitive would not reason to believe absent this order they Furthermore, to do so in this case. have managed has fit to to the discretion of seen leave *12 courts the determination of the of expert qualifications witnesses, continuances, and, im- more granting im- sentence portantly, question severity aas criminal sanction. I fail to see we cannot posed why leave to that same discretion determination judicial whether orders to expedite stay pending proceed- effect a order to result. ings may required just It is clear from that the circuit courts opinion without to effect the kind of transfer and power consoli- dation effected this order. The result end of this this court will opinion necessity required entertain actions with records original wholly inadequate make as to determination which is to be county of trial. With the numbers and of cases place types Ius, before submit this court far respectfully too its time busy races the court- spend refereeing house.
(No 53309. LAWRENCE D. v. THE JACOBSON, INDUS- Appellant,
TRIAL COMMISSION et al. (Service Woodworking Co., Appellee).
Opinion February Rehearing 1981. denied March 1981.