*1 Sobina, Paula M. Rudolf Sobina Rudolf Edward Edward Sobina, Jr., Paula Minor, Sobina, M. Mother Friend, His and Next Plaintiffs-Appellees, Defendant, v. James A. In Busby, and Safeco surance of America, Company Corporation, Citation Defendant and Appellant. 49,441.
Gen. No. First District, Third Division.
March 18, 1965. denied Rehearing September 16, 1965.
(cid:127)2 *3 Berchem, (Michael Schwantes of &.Thuma, Chicago J. Richard E. Thnma, Owen and Young, Eagle, Warren of for counsel), America, Safeco Insurance of Company citation defendant corporation, appellant. and
James A. of for Dooley, Chicago, appellees. opinion of
MR. delivered the JUSTICE SCHWARTZ the court. injuries, judgments personal action for were this plaintiffs against and the defendant in favor of
entered Bushy aggregating $26,000. A. James on verdicts thereupon supplemental Plaintiffs instituted proceedings Act under section of the Practice Civil purpose (Ill (1963)) § of c for the Stats, Rev pol coverage subjecting provided an insurance the by icy Company of Insurance America issued Safeco (citation defendant) payment judgments. plaintiffs sum The of entered trial court motion against mary judgment and defendant, the citation appealed. has latter principal is of citation contention that a was rendered James decree finding County, Alabama, Circuit Court Walker ground was void on the that the misrepresentations procured by fraudulent it was credit, faith to full that this decree entitled here plain- personal injury notwithstanding the fact proceeding. parties made to the Alabama tiffs were not The proceedings background of follows: these July plaintiffs, York, residents New 9, 1955, On County, injured in a at Markham, collision Cook were A. an automobile driven James between Illinois, Jasper, one in which Alabama, Superior riding. instituted Plaintiffs suit were County to recover 28,1955, on December Court Cook injuries personal sustained. The insurance *4 question Jasper, the had been issued citation in applica- July 23, on the Alabama, 1954, in on Busby, father of covered of the James. tion Lane operation at the the time the of automobile James designated by Attorneys the of citation the accident. personal appearance in- in the their defendant entered Busbys. jury for filed an answer the suit and April without the citation 1957, defendant, On 22, plaintiffs, seek- suit, the Alabama notice to instituted ap- policy ground ing in the that to void on the misrepresentations plication material insurance, for the respect age of James had been Busby, with to made percent- to the who was then and as nineteen, by operators age of car driven time the would be complaint, twenty-five. age In the under the of alleged on had been called it citation defendant that injury Busby personal in suit to defend James ap- misrepresentations in the first had plication learned policy had occurred. for the after the accident (the personal injury May hearing after a 28, 1960, On knowledge), being still without notice or claimants Court of a decree entered the Circuit Walker question County, declaring Alabama, void ab initio. attorneys
Following decree, appearance on defendant who had filed an behalf Busby personal injury to made motion suit, setting withdraw, forth the decree the Alabama obliga- averring no or court and contractual other any requiring citation defend- tion of kind existed provide significant that ant defense. It is for the thirty days, motion within this made period including generally, Ala- within which courts (1958)) (Code § have Title bama, Alabama, to set aside their orders. Submitted broad discretion A. with motion was letter James Busby, advising insur- them that the his father Lane they void and that ance had been declared personal provide their own defense should injury an suit. order On November requested granting leave to withdraw. entered Superior February an order of the Court 19, 1962, On County A. found default Cook James complaint that the cause heard and ordered be *5 Thereupon, jury, answer. the cause was submitted to a judgment a verdict was and rendered, entered for Following supplemental proceedings $26,000. this, here involved were commenced.
There can be no doubt that to Alabama suit policy only, void the if not the main, purpose avoiding any obligation might which arise personal injury suit, Illinois and that plaintiffs parties were not made to that given they suit or notice so that thereof, could not participate in the defense. Busby, deposition support
Lane in his taken in plaintiffs’ summary judgment the citation motion for in the
proceeding, testified that the 1948 Chevrolet bought which James in his for a few hundred dollars (Lane Biisby’s) purchased name, had been so go Chicago job. that James could to to look for a Busby Lane was a miner in Alabama. The initially period was issued for a six-month and was by renewed Lane James, from instructions ' Chicago. who then in \ appears Busby’s thus that James financial re- sponsibility ability pay any was such as to make his judgment might which be obtained him in the people doubtful, Illinois suit and that who were substantially definitely interested and in the Alabama were suit suit. Illinois
Under the Federal Constitution a given rendered court of a sister state must be full faith and credit the courts of other states. jurisdiction parties a court has Where and the subject judgment regularly matter, its entered, even though appeal valid until reversed on erroneous, is subject cannot be This support to collateral attack in another state. often, has been so it no citation stated needs question but it it, does answer here in- judgments paid volved. had If James *6 company of in the courts sued the insurance had then faith and credit no that the full is doubt there Illinois, have made would clause the Federal of Constitution complete not is That the decree a defense. Alabama paid judgments is nor He the the situation. has not rights doing any prospect The to be there his so. of Busby, but of the not of James determined are those injured plaintiffs. proceed to consideration of in mind we
With this
Federal Constitu-
the
clause
the
full faith
credit
applies
as it
decree of the Alabama
tion
the
ground
voiding
policy
mis-
of insurance on the
representation.
upon
so
defendant,
The
relied
case
Mat.
far as Illinois is concerned is
States
Western
May,
App2d
NE
Ins.
18 Ill
152
Automobile
Co. v.
company brought
2d
insurance
a de-
608. There the
seeking
claratory judgment
have
in
to'
action
Illinois
liability policy
its
declared void
automobile
ground
misrepresentation,
appli
of a
policy,
cation for the
the automobile owner was
was a
that
an
adult. The actual
the son
minor,
owner
passengers
named insured.
minor and two
were
injured
killed
in an accident in
and three others were
in Tennessee and there
Tennessee. Suits were filed
declaratory
after
in
was filed. The
action
Illinois
plaintiffs
parties
made
in
Tennessee action were not
the Illinois suit. The trial court declared
appeal
void.
and held
this court affirmed
On
necessary parties;
plaintiffs
not
Tennessee
were
filed
that “a claim or
claims has been
fact
series
against
purported
significance
in
insured
of no
relationship
determining whether or not the insurance
May
will consider Western States v.
ever existed.” We
contrary.
examining
cases
further after
plaintiffs
ample authority holding that the
There is
underlying
privity
are
action
not
with
tort
(cid:127)7
against
the insured, that the insurance
is one
liability
plaintiffs’ rights
and not
that the
loss,
accrued at the
time
the accident and
were
cut
proceedings
off in a later decree
entered
to which
parties.
were not
New Amsterdam Cas.
Murray,
(6th
1957); Spann
Co. v.
242 F2d 549
Cir,
v.
(8th
Commercial Standard Ins.
82
Cir,
F2d 593
Co.,
1936);
v.
Dransfield
Citizens
Co.,
Cas.
In New Amsterdam the Cas. Co. v. company brought defendant’s insurance suit Virginia ground to cancel on the the insurance that it procured representations. was judgment false A default cancelling policy entered, the
was of a party injured date the before accident. The in the party Virginia accident, who was not made a to the knowledge brought action had no of it, suit in Kentucky judgment. and obtained He then sued the company, defendant’s insurance which defended on the ground Virginia judgment cancelling the the policy binding plaintiff, regardless was on the of the party fact that the latter not a was to the suit. company, held court that as to the insurance the in- jured party’s rights upon happening arose the of the abridged by accident and could not thereafter be the party, Spann citing to was which she not a supra. v. Ins. Co., Commercial Standard The insurance policy indemnity against liability, for was and the obligation liability became fixed the insurer when to the insured. attached supra, New Co., Cas. v. Citizens In Dransfield empha-
Jersey but also factors, stressed above of action a cause Code, Insurance under the sized that against plaintiff if execution given the insurer was against In al- insured. returned unsatisfied proceed against in- injured party lowing despite decree carrier surance 306): (p the court said void, privity statutory is not the intendment there “In injured person and the named assured between decree conclusive render the essential to proceeding fraud. The the issue of the latter on eventuating equity decree invoked in the now injury plaintiff suffered had after the judgment. then Plaintiff he recovered which subject an interest under the statute had matter which prin- operation precludes of the inoperative ciple privity and renders the decree jurisdiction per- him for want of as to served not be of the act would son. . . . The plaintiff privy make a rule that would right litigate deny him the decree and action of the direct of fraud raised bar issue proof against the assured afforded where thus execution.” in section 388 of the a similar statute
Illinois has (1963), § Ill Rev c Code, Stats, Insurance has *8 respect public expressed views with to the same injured policy the to hold that led other states which underlying plaintiff action has an interest in tort the by action to he is off an which cannot be cut which not a Freeport party. Co., Motor Thus, in Scott v. Cas. (p 346): 64 NE2d the said 392Ill possibility policy, insured the of the the “Under always present. becoming beneficiary That within, the terms of the contract. Bnt the statutory provision incorporated into the contract brought within the terms of the another class of beneficiaries. was uncertain as who might happened, it be until an accident the cir- ' policy. cumstances of were the which within legal responsibility the occurred, When event at- identity tached to the insured and the beneficiary third-party became known. The time place by happening fixed were of the From the occurrence of such accident. accident injured party until the claim reduced his judgment, poten- the insured to he least a was at beneficiary tial under with certain fixed upon rights company he which could sue the when- judgment against ever he obtained a insured. the. injured injustice party be an It would the curring to such if permit would the acts law of the insured oc- policy. after accident to defeat the public policy The is a declaration of statute purpose public injured are benefit whó its negligent operation of an automobile which policy. Any application in is described other permit acting insured, law an would alone conjunction case, this or in with the insurer, purposes to defeat which the statute enacted.” noting after that similar court, conclusions had Pennsylvania, Oregon, Washington
been reached quoted approval following York, New with language Spann from v. Commercial Standard Ins. Co., supra, Appeals relied on Circuit Court Murray, supra, (p 347): New Amsterdam Cas. v. Co. injured rights party “The arise, however, the, immediately upon happening of the ac- right, arising . . . cident. This contract, from can- *9 subsequent attempted by destroyed an not be compromise the insured or cancellation, release, allowing contrary rule ... A and insurer. destroy claim of insurer to insured and right injured of little value.” render the would declaratory judg- in a have held that courts Alabama company brought by to dis- ment action injury plaintiffs liability, personal charge it from parties. necessary Ins. Co. Mut. Auto State Farm are (Ala 1953); Sharpton, American Auto 66 915 So2d v. ques- (Ala 1957). English, The 94 So2d 397 Ins. v.Co. jurisdiction, but rather than of tion one of venue personal of whether involved the determination parties injury plaintiffs Ala- in interest. The were supra 917): Sharpton, (p said in bama court necessary party is to obtain “A material is one who sought. jurisdictional That does not relief brought purpose of extend- in for the include one complete justice. (Cita- ing the relief so as to do tions.) the several suits But for directly damages interested to extent that are complainant to declare that the court is ashed any judgment may which be ren- not liable against complainant can enforce dered. Plaintiffs liability 11 28, Title 12, under Sections such necessary parties They are Code. therefore 166, 7, Code, Title this, section such suit suf- 7, under Title the venue Section ficient fix (Emphasis County.” supplied.) in Lauderdale question of venue was raised American The same English, Ala v. So2d Ins. Auto where Co. declaratory judgment brought for a a suit the extent to: determine another one insurer injury plaintiff personal liability. of its action, party to the made a suit. administrator, an *10 quoted supra, Sharpton The court from the case, Judgments, Declaratory from Actions for Anderson, 137, which 399: states, at may generally
“It that of said, he in this class company cases wherein the insurance seeks to escape responsibility duty and to be of the relieved defending, injured parties of that the auto- such accident, mobile and all insurance com- insured panies necessary declaratory parties are and that granted they will relief not be are made either until plaintiffs or a defendants such case.” Reverting May, supra, to Western States v. in es- reasoning sence there that a fraud vitiates taught, ab initio, contract as the all hornbooks personal injury plaintiffs acquire hence the could not anything distinguished under we it. that case be- seeking tween suits a void of insurance and coverage. suits to determine the extent of It is dis- rights plaintiffs tinction without merit insofar of underlying personal injury action are concerned. syllogism contemporary correct, The but life does simple of not admit list that such solutions. We must now en- aphorism Holmes, famous of “The Justice logic experience.” life of law is not but In Western totality problem we could not see the of States, nor principle how the there announced could be used to promote destroy justice, rather than nor did we see the holding injured plaintiffs lack of realism in a that had necessary parties no such interest as would make them legal proceeding deprive to a which could them of the procured protection pur- their benefit insurance suant to the of this laws and other states. Law when reality injustice. from divorced courts personal that We hold in a public injury liability suit have an interest in coverage which is distinct from that of the insured and any which, or decree voided cannot he they parties. not proceeding are to which equity argues suit its The citation brought judgment, declaratory but was for a not Rule 29 under contract the insurance to rescind Appendix (Code Equity Yol Ala, Rules Alabama proper par- necessary provides that or (1958)) which jurisdiction not need nonresidents ties who are Judg- Declaratory Alabama made defendants. be persons requires “All made shall be Act ment any would be which parties interest or claim who have declaration no shall declaration and affected prejudice parties pro- rights persons *11 (1958).) § (Code ceedings. Title of Ala, . . .” a suit for re- is called Alabama action the Whether declaratory relief makes no difference. or for scission rights defend- of the nonresident both instances by the decree of Alabama be affected ant cannot process. they As have with court unless been served on decision does not turn our forth, hereinbefore set personal plaintiffs injury suit whether or not the necessary parties decree, to Alabama but were rather holding rights of the our liability insurance could to resort to the automobile cut in the Alabama suit between the citation not be off they unless were made defendant and James proceeding. parties defendant to that plain The defendant contends that citation proceed right in “the of James have elected tiffs Busby) Busby,” (that of and as his as creditors is, plain by right decree, terminated Alabama thereby extinguished. rights A citation tiffs’ were statutory proceeding proceeding established, a de by Practice and controlled section 73 Civil fined (1963)). § (Ill c It has been Stats, Rev Act judgment may generally not re a creditor held that third-party against a citation defendant unless cover the third-party debtor from the could have recovered appropriate
defendant in an
This
action.
applied
obligation
is a test to be
to the
the third-
of
party
proceeding.
in a
It was
analogy
garnishment.
taken from the law of
reme-
garnishment
dy
part
of
is not
law
of
common
only by
exists
this state
virtue of statute: A branch
originally
part
of
law of
it
of
attachment,
was a
Custom London and
used
merchants
purpose
the collection of commercial
For
debts.
such
question
precondition
proper
the test
is a
right
obviously
creditor’s
to recover. It is
test
applied
fairly
that can be
the case
us for
before
reásons which we will now discuss.
'
problem
increasing
The social
inherent in the ever
legislative
use of the automobile has
action.
induced
problem
ap
The extent of the
is revealed in statistics
pearing
Safety
report
in the National
for the
Council’s
year
showing
injuries
43,400deaths and 1,600,000
licensing
in automobile
accidents,
93,700,000
registration
drivers, and the
83,000,000 vehicles,
contributing mileage
figure
totaling the
fantastic
eight hundred billion miles.
the third or
Illinois,
fourth state of
has
union,
its share of this traffic.
seeking
All the states have enacted laws
to assure some
remedy
injured
for those
the result
of automobile
*12
accidents. Simmon v. Iowa Mut. Cas.
In Illinois, has for minimum liability coverage proof insurance re as Rev financial sponsibility (Ill § for accidents Stats, 95%, 7-203 c (1963)); provided supplying has those trans portation liability policies must for hire have insurance proof responsibilty or make of financial before com mencing operations (Ill § Rev c Stats, 8-101 et 95%, seq. (1963)); provided liability further has that no insurance shall be issued unless “uninsured
14 provided (Ill coverage c Stats, 73, Rev motorist” provided, (1963)); § section further 755a and has liability policy 388 of the Insurance that no Code, provisions insurance shall issued unless it contains be allowing by judgment creditor direct action judgment if the is not satisfied the insurance carrier, § by (Ill 1000 73, c Stats, debtor Rev (1963)). here involved where Alabama, statutory provision of Ala has a similar issued, —Code (1958). § Title bama, supra, In Mut. the court Co., Simmon v. Iowa Cas. position important noted which automobile insur it ance taken in the and said that has modern world longer merely private was parties; a between two no contract greater litigation part con
that the of our personal injuries operation cerned with caused legislatures of motor states have encountered and as a result have enacted and that the of all our vehicles; recognized perils daily hazards
legislation protection injured party. aimed at the The court then referred to the various Acts which had been passed, (p 322): hereinbefore mentioned, and said general promoted by
“That the welfare is such laws can be little doubted. Government and general public have an understandable interest in problem. Many persons injured and disabled public from automobile accidents would become charges were it. not for financial assistance re- n companies.” ceived from the insurance People Terry ex rel. v. Fisher, 12 Ill2d pretrial NE2d the court sustained an order for a discovery liability personal injury question suit. had not been theretofore determined upon passing court in Illinois, it relating reviewed the various laws and decisions liability saying (pp 237-38): insurance, *13 we
“Moreover, have of the construed section 388 Insurance Code to be declarative of the public of this State to protect injured by persons the negligent operation of motor and as vehicles, conferring which be after rights cannot defeated by accident the concerted action insured of the and the (Scott insurer. v. Freeport Motor Cas. Co., 392 332, NE2d It is 542.) clear that legislature, virtue enactment, of the foregoing has placed insurance in a dis- liability category tinct from the other insured’s assets so far persons injured of his negligent operation motor vehicle are concerned.” The reason for the courts thus lia- distinguishing insurance from other bility assets is clear. Liability insurance as such cannot be into converted cash. Its value arises occurred, when an accident has when only defense becomes and when is ac- necessary, liability or knowledged contested. is not an “asset” such as a bank real account, estate or with to salary due, respect which the courts that created the test the creditor can- not collect from the if the debtor could The position not. of the personal injury plain- tiffs in the case before is more in the of a us nature creditor carved out of the interest. relationship The test used the ordinary garnishment proceeding is not in a case such as this as we applicable where, have ex- seen, interest of the was not a decree entered which tinguished by proceeding were not they parties.
The citation defendant further argues section Rev c 73(5) (Ill Stats, 73(5) (1963)) requires § person shall be “determined rights pur suant to the law relating garnishment proceedings.” shall be “as that such rights statute provides There is serted and determined.” (Emphasis added.) *14 reason in a no these cannot be why adjudicated rights citation proceeding.
The citation the argues also order leave its to to withdraw from granting attorneys the defense of James the Busby judicata res as to in subsequent proceeding because its motion the citation defendant cited the of the Alabama entry decree the insurance relieved it voiding policy which of further to any James duty Busby under the insur ance it policy, notice to the gave plaintiffs, that plaintiffs did not answer its motion or take an appeal from the order. The doctrine of judicata, res briefly is that a final stated, rendered court of competent jurisdiction on the con merits is clusive as to the rights of the parties and their privies, and as to them, it constitutes an absolute bar to a sub sequent action the involving same or claim, demand cause of action. E. Charles Co. v. Harding Harding, 352 Ill NE 417, 186 152; v. People 398 Ill Kidd, 405, 75 NE2d 851. order permitting counsel to withdraw was not a final judgment or decree on the but merits, awas order preliminary entered without hearing evi dence and at which, best, accepted the Alabama judg or ment decree as prima facie evidence of its validity. Furthermore, identity of the parties was not as the motion in same, question was not made by James but Busby, by his counsel. in essence an ex parte between proceeding and his Busby counsel which was addressed to the discretion of the trial court. The decisions cited by the citation defendant are point. each case there was a final judgment on the merits prior and in proceedings each case the identi ty parties the identity of the subject matter was the same. The plaintiffs are not estopped by record from their prosecuting citation proceeding.
The citation defendant further argues that irrespec- tive of the correctness of the trial court’s decision with to
respect decree, Alabama binding nature summary judgment granted improperly following of Lane grounds: (a) testimony insur- the circumstances execution surrounding under ance application parole inadmissible evidence Lane rule; there were issues of fact as to (b) the citation defendant was Busby’s credibility; (c) denied an trial present adequate opportunity facts its support position plaintiffs’ depositions abandonment of their Alabama of James con- defendant, and of of citation agents *15 a A trary to their statement stipulation by attorney. of these follows. proceedings nine after the de- months
Approximately fendant’s been on filed, plaintiffs Septem- had. answer a motion for plead- ber filed the 10,1963, judgment on. summary alternative for or the ings judgment,- attaching policy alleging, and copy the any other that the had waived things, among .insurer and that misrepresentations breaches or liability from its thereunder. it was estopped denying came on hearing September that motion When on.for 1963, was the 17, granted.to leave citation defendant was motion, hearing to the and the continued reply to filed its to 1963. citation defendant 8, October and in addition to 18,.1963, stating on reply September set deeree, to the Alabama respect position- its with material was void because of forth that the part- and false statements on misrepresentations the the that he was sole owner of Lane to effect Busby that drive vehicle James would the the automobile that alleged ten annual mileage. of its percent Busby pending plain- was -and of James deposition and there were pending, depo- had requested, tiffs agent of the citation defendant’s to taken sitions be at .Lane Busby’s Alabama. manager Jasper, and office February 1963,'. taken ón some had been deposition eight'.months plaintiffs’ judgment motion for before hearing, present was for at that time were set attorneys repre- appearing counsel on behalf of supplementary senting the citation defendant at the proceeding. day before On October summary judgment heard, motion for was to be supported by filed a motion citation defendant asking attorney, the trial court to order affidavit of its setting depositions Busby and of Mr. of James agents procured and Mrs. Bile Gr. who Blackwood, Jasper, for at Ala- insurance, 26, 1963, October ruling No made that motion. bama. was following plaintiffs’ day, motion 8th, On October granted judgments for varying the citation amounts were entered defendant. principal argument
The citation defendant’s plaintiffs’ depositions opposition the absence summary judgment motion for attributable plaintiffs’ attorney. According conduct of the cita- stipulation tion provided defendant, was entered into which depositions that the of Lane and James only and the be however, Blackwoods taken. fact, deposition ¿p- of Lane taken. James *16 parently county sick and the the out of at the time Busby’s deposition elder was taken. No reason was given taking depositions for Blackwoods, the of the except plaintiffs attorneys that the for Alabama had attorneys informed the Alabama fendant that for the citation de- they had received instructions from the the plaintiffs’ Chicago attorney proceed not to with depositions which had been for set October 1963. This information last is contained the affidavit of attorney support citation defendant’s of the October setting depositions 7th motion for a court order the of Busby James and the for 26,1963. Blackwoods October is question presented whether, the exercise of a discretion, the trial court should proper granted have a continuance on the motion for summary judgment.
The citation if the trial ruled defendant, it decree, on the conclusiveness of the Alabama a desired to make factual defense based on the alleged To that with the misrepresentation. stipulation end, which plaintiffs’ attorney for the provided taking depositions was these upon. While evidently agreed depositions were it that pending, appears plain- after Lane refused tiffs, obtaining Busby’s deposition, continue with ab- taking depositions for A ruptly moved motion summary judgment. citation defendant for an order setting depositions of James and the Blackwoods for October those 1963, and be bound ordering plaintiffs by never depositions whether or not they participated ruled on. The following day summary judgment was granted. do not this mean opinion
We to qualify to make such defenses right to the insurance as are available to it. properly fairness to citation defendant and we because believe the trial court abused its in not discretion granting a continuance for the purpose taking of James depositions (es Blackwoods had entered into pecially apparently since such a is reversed stipulation), summary judgment and the cause is remanded with to proceed directions these in accordance with views.
In the view we have it un taken, becomes us decide whether issue of necessary genuine fact was on the state of presented material the present and depositions. However, since the cause pleadings remanded, we should our being express opinion made the citation defendant point dep-
20 of tbe Busby because inadmissible Lane osition of argues parole Tbe citation rule. evidence meaning tbe modifies alters, varies that this properly application identi- wbicb was insurance tbe fied and offered tbe by plaintiffs, and that in evidence testimony inadmissible. therefore Lane is contrary. v. Ins. Phenix Co. tbe Tbe are to cases Security Bene v. 408; NE Guter 149 Ill 36 Stocks, Security Niemann v. 521; Ill NE 335 174, 166 fit Ass’n, Nogulich v. 223; 183 NE 350 Ill Ass’n, Benefit App Metropolitan 46 NE2d Ill Life Ins. Co., App Ill Ins. Co., v. 396; Moone Commercial Cas. NE2d 626. 328, 112 distinguish them
Tbe defendant seeks to application ground tbe in these cases tbe party parole tbe evidence introduced one was by moving Tbe has no another. distinction merit. summary judgment, plaintiffs naturally intro- tbe complaint, policy along tbe insurance with their duced and after tbe citation defendant alleged material mis- policy, representations application for tbe tbe tbe deposition plaintiffs of Lane introduced tbe controverting allegations. those finding
Tbe of tbe trial court that tbe were proper. by tbe decree Tbe not bound Alabama give tbe citation defendant should, however, present opportunity within its reasonable wbicb tbe factual issues defense on involved. judgment tbe cause remanded
Tbe is reversed and summary aside and vacate tbe with directions set proceedings further and for such other and expressed. are inconsistent with tbe views herein Judgment cause remanded reversed and with di- rections.
DEMPSEY, SULLIVAN, J., P. J. concur. *18 Reheaeing Petition eoe On in case We held this that the decision of Ala voiding bama court the insurance here involved binding per was not on the Illinois courts because the parties injury sonal made were not de doing departed so from laid fendant. we the rule down in Automobile Western States Mut. Ins. Co. v. May, App2d Ill 608, 18 152 NE2d which had for Appellate years by some been the law stated (the on which the citation in Court and company) preserved specifically surance relied. We right of citation defendant however to defend on ground the representation. was obtained mis further sustained Point of cita We tion in brief, defendant’s trial court erred summary judgment depositions proceeding to before were taken on that issue. subsequently a
Plaintiffs filed motion diminution by filing supplemental to amend a the record and Plaintiffs also filed document called a “Mo- record. Expunge Beyond tion to of Remandment as Order Appellate Power Court and Constitutional Rehearing.” This document a Petition for relied part portions proceedings trial on contained only supplemental record. 92(1) (c) Prac
Under Section of the Civil 92(1) (c) (1963)), (Ill § c Rev Stats tice Act power permit Appellate “to or Court has the order by correcting to be amended errors or the record adding matters which should have been included.” supplementary may held that a record be has been only rehearing where the clerk has inad on filed portion vertently of the record or where the omitted Supreme Lodge irregularly obtained. record was Knights Dalberg, Ill v. 28 NE 785; of Honor 9 Ill v. 57 Ill 395; Fancher, Gerke Wellman, Pearl v. such, App wish Plaintiffs here. 651.No situation exists proceedings portions of the trial to file additional original record been included which could have praecipe practice. ordinary through To the use of the litigation needlessly prolong motion would allow their by allowing rehearing. urged arguments to be new The motion will be denied. plaintiffs’ motion to turn to a consideration
We petition expunge the order remandment *19 supplemental rehearing rec- reference to the without (1) argument no order twofold: ord. Plaintiffs’ denying motion for defendant’s was ever entered depositions purpose taking of continuance for the Busby it must Blackwoods and that of and the James urged presumed the motion was never be at law that exercising original rather and this court therefore jurisdiction; (2) appellate trial and that than granting in not its discretion did not abuse purpose taking depositions. continuance for the de- the citation defendant both The and depositions. Busby James was the driver sired to take of he car the time the accident occurred and at sought com- is the one to be covered the insurance January plaintiffs’ attorney pany. in 17, 1963, On attorney Chicago Chicago in wrote to the defendant’s as follows: copy enclosing of the Notice for the
“We are taking depositions of Lane and James February Jasper, in Alabama. 2,1963, agreement, hereby accordance with our we “In depositions stipulate taking any in behalf Company, Insurance in accordance with Safeco arrangements to be made between the law firms Tweedy representing Safeco Insur- Beech, and Company, attorneys and Bevill and Jackson, ance plaintiffs.” representing the There were difficulties in James Both finding Busby. sides had lawyers Jasper, Septem- and on Alabama, ber 16, 1963, attorneys Jasper wrote to plaintiffs’ as follows: attorneys Jasper had
“We have set to be taken of testimony up the witnesses three or four in this times ease. The first Busbys up. time the did not show took second time we Mr. but Busby’s testimony, his son was sick and unable to and this continue, and has put off; something happened it the other two times so that it could not be taken. Mr. has son meantime been out of the busby’s so just returned, Mr. Jackson of the county firm of Bevill and Jackson has just informed me. will to take his arrange testimony We have the next ten you days. it within
“This is a letter of be- just explanation, cause the has not been able to take the plaintiff and we felt Busby’s testimony yet, should be taken before we took our testimony. if will However, you passed have case over will our time, go for a short we ahead with testi- *20 do not though young even take mony they Busby’s testimony.” clear that both desired these parties
It thus appears and we assume that parties must both depositions thus to be testimony given considered that relevant to the issue of important misrepre- sentation. 1963 had filed a motion September 10,
Plaintiffs on on or in the alternative pleadings for it came on for judgment. hearing for When summary ci- 1963, granted leave was September 17, on to the motion and the hear- reply defendant tation 1963. The citation 8, continued to October ing September 18, 1963, its al- reply filed things deposition leging among other that the of James pending plaintiffs requested and that had pending depositions and there were to be taken manager agent at the citation defendant’s and office Jasper, day 7, 1963, Alabama. On October before summary judgment for heard, motion was to be supported by the citation defendant filed a motion attorney asking affidavit of trial its court to order depositions setting of James and the Blackwoods for October 1963. No order was en- respect tered with to this and on motion, October summary judgment plaintiffs. was entered for argument urged
The constitutional for petition rehearing. the first time in the for Point IV opening of the citation defendant’s brief is as follows: Any “Since the Citation Defendant Could Make Defense to the Plaintiffs’ Citation That It eould Policy by Busby, Make to an Action on its James Since There were Genuine Issues of Material Pact Especially Present case, Since the Attorney Stipulated Taking Plaintiffs’ Had Depositions by the Citation Defendant Which Judgment Had Not Been Taken at the Time Was Entered, Was Error for The Trial Court to Judgment Pleadings Summary Enter on the Or Judgment.” (Citing cases.) jurisdiction Appellate question Court on the was of any course therein assumed, if there was question about it, should have raised the point Appellate provides at that time. Court Rule 9 petition rehearing that the concisely shall state points supposed prehended misap- to have been overlooked or proper the court, with reference to the particular portion of the abstract and brief relied upon. Reargument of the case shall not be made in *21 petition. Parties pe- cannot for the first time on
25
rehearing
questions
for
raise
which were
tition
not
argued
urged
appeal.
City
Chicago,
Rose
or
v.
App
Chicago City
NE2d
1,
717;
Ill
45
Bank &
317
App
293 Ill
v.
Plaintiffs’ language apprehension expresses opinion in our that there is judge. on him and on trial which reflects so intended. petition rehearing denied. Motions and concur. J., P. DEMPSEY, SULLIVAN, J.