143 N.E.2d 673 (Ill. 1957), 34244, Nelson v. Miller

Docket Nº:34244.
Citation:143 N.E.2d 673, 11 Ill.2d 378
Party Name:Norbert NELSON, Appellant, v. Howard MILLER, Appellee.
Case Date:June 17, 1957
Court:Supreme Court of Illinois

Page 673

143 N.E.2d 673 (Ill. 1957)

11 Ill.2d 378

Norbert NELSON, Appellant,


Howard MILLER, Appellee.

No. 34244.

Supreme Court of Illinois.

June 17, 1957.

Page 674

[11 Ill.2d 380] Pedderson, Menzimer & Conde, Rockford (Dale F. Conde, Rockford, of counsel), for appellant.

Welsh & Welsh, Rockford (John T. Holmstrom, Jr., Rockford, of counsel), for appellee.

SCHAEFER, Justice.

The issues in this case concern the applicability and the constitutionality of the 1955 amendments to sections 16 and 17 of the Civil Practice Act. (Ill.Rev.Stat.1955, chap. 110, pars. 16, 17.) As amended, those sections authorize the entry of judgments in personam on personal service of summons

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outside the State in enumerated classes of cases.

The complaint was filed in April of 1955. It alleged that the defendant, who is a resident of Wisconsin, was engaged in the business of selling appliances; that on June 3, 1954, he sent one of his employees to deliver certain appliances, including a gas cooking stove, to the plaintiff in Pecatonica, Illinois; that at the request of the defendant's employee the plaintiff assisted in unloading the stove from the truck, and that in the course of this operation defendant's employee negligently pushed the stove so as to [11 Ill.2d 381] sever one finger on plaintiff's right hand and injure another. Plaintiff claimed damages in the sum of $7500.

Two attempts to serve summons failed because the defendant was not found. In February of 1956, after the amendments to the Civil Practice Act had become effective, summons was served personally on the defendant in Wisconsin. The defendant appeared specially and moved to quash the summons on the ground that the amended provisions contravene the United States constitution and the constitution of Illinois. The court granted the motion, and plaintiff appeals.

Section 17 is as follows:

'(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits said person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of said acts:

'(a) The transaction of any business within this State;

'(b) The commission of a tortious act within this State;

'(c) The ownership, use, or possession of any real estate situated in this State;

'(d) Contracting to insure any person, property, or risk located within this State at the time of contracting.

'(2) Service of process upon any person who is subject to the jurisdiction of the courts of this State, as provided in this section, may be made by personally serving the summons upon the defendant outside this State, as provided in this Act, with the same force and effect as through summons had been personally served within this State.

'(3) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him is based upon this section.

[11 Ill.2d 382] '(4) Nothing herein contained limits or affects the right to serve any process in any other manner now or hereafter provided by law.'

The pertinent part of section 16 is as follows:

'(1) Personal service of summons may be made upon any party outside the State. If upon a citizen or resident of this State or upon a person who has submitted to the jurisdiction of the courts of this State, it shall have the force and effect of personal service of summons within this State; otherwise it shall have the force and effect of service by publication.'

We consider first the defendant's contention that the new provisions of the statute cannot be applied to him because the cause of action arose before the effective date of the provisions authorizing extraterritorial service on nonresident defendants. Insofar as this claim is based on the Federal constitution it is without merit. Sections 16 and 17 do 'not extend either to destruction of an existing cause of action or to creation of a new liability for past events.' Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 554, 69 S.Ct. 1221, 1229, 93 L.Ed. 1528; see also Ex parte Collett, 1949, 337 U.S. 55, 71, 69 S.Ct. 944, 93 L.Ed. 1207; cf. Federal Rules of Civil Procedure, Rule 86, 28 U.S.C.A.

Insofar as the claim is grounded in Illinois law it is fully disposed of by our

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recent decision in Ogdon v. Gianakos, 1953, 415 Ill. 591, 597, 114 N.E.2d 686, 690, where we said: 'The law applicable in the State of Illinois is that there is no vested right in any particular remedy or method of procedure, and that, while generally statutes will not be construed to give them a retroactive operation unless it clearly appears that such was the legislative intent, nevertheless, when a change of law merely affects the remedy or law of procedure, all rights of action will be enforceable under the new procedure without regard to whether they accrued before or after such change of law and without regard to whether the suit has been instituted or not, unless there is a saving clause as to existing litigation. Chicago & Western Indiana [11 Ill.2d 383] Railroad Co. v. Guthrie, 192 Ill. 579, 61 N.E. 658; Peoples Store of Roseland v. McKibbin, 379 Ill. 148, 39 N.E.2d 995; Board of Education v. City of Chicago, 402 Ill. 291, 83 N.E.2d 714. This statute embodies no saving clause as to existing litigation. It merely establishes a new mode of obtaining jurisdiction of the person of the defendant in order to secure existing rights, which are unaffected by this amendment. As a change which affects merely the law of procedure, there can be no valid objection to enforcing the existing cause of action under this new procedure.' See also Orlicki v. McCarthy, 1954, 4 Ill.2d 342, 347-48, 122 N.E.2d 513.

As in the Ogdon case, the statute before us contains no saving clause. And, as in that case, the change 'merely establishes a new mode of obtaining jurisdiction of the person of the defendant in order to secure existing rights, which are unaffected by this amendment.' Retrospective application of such a statute creates a problem only if that application operates unfairly against a litigant who justifiably acted in reliance on some provision of the prior law. It is difficult to imagine such a case insofar as section 17(1)(b) is concerned. Only if jurisdiction in a case such as this is regarded as founded on a bargain between the State and the nonresident, whereby consent to be sued here is given as the price of a privilege conferred, can it be thought that the exercise of jurisdiction is unfair because the consent occurred before the terms of the bargain were known. For reasons that will be stated, we are satisfied that jurisdiction does not rest upon such a fictional consent.

Defendant's main contention is that the amended sections deny him due process of law, and so violate the fourteenth amendment to the constitution of the United States and section 2 of article II of the constitution of Illinois, S.H.A. Since Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, was decided in 1878, significant social, technological, and legal developments have occurred. Rigid concepts have yielded to fiction, and fiction has yielded to forthright and realistic considerations of fairness[11 Ill.2d 384] in the determination of what constitutes jurisdiction to determine personal rights. Mr. Justice Holmes's observation, 'The foundation of jurisdiction is physical power, * * *.' McDonald v. Mabee, 1917, 243 U.S. 90, 91, 37 S.Ct. 343, 61 L.Ed. 608, can no longer be read restrictively. The foundations of jurisdiction include the interest that a State has in providing redress in its own courts against persons who inflict injuries upon, or otherwise incur obligations to, those within the ambit of the State's legitimate protective policy. The limits on the exercise of jurisdiction are not 'mechanical or quantitative' (International Shoe Co. v. Washington, 1945, 326 U.S. 310, 319, 66 S.Ct. 154, 159, 90 L.Ed. 95,) but are to be found only in the requirement that the provisions made for this purpose must be fair and reasonable in the circumstances, and must give to the defendant adequate notice of the claim against him, and an adequate and realistic opportunity to appear and be heard in his defense.

The change that has occurred is made most manifest by the decision in International Shoe Co. v. Washington, 1945, 326 U.S. 310, 66 S.Ct. 154. There the court said: 'Historically the jurisdiction of the courts to render judgment in personam is grounded on their de facto power over the defendant's person. Hence his presence

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within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L.Ed. 565. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'' 326 U.S. at page 316, 66 S.Ct. at page 158. The court added that the demands of due process 'may be met by such contacts of (the defendant) with the state of the forum as make it reasonable, in the context of our federal system of government,[11 Ill.2d 385] to require the (defendant) to defend the particular suit which is brought there. An 'estimate of the inconveniences' which would result to the (defendant) from a trial away from its 'home' or principal place of business is relevant in this connection.' 326 U.S. at page 317, 66 S.Ct. at page 158. While the precise question related to the jurisdiction of the courts of the State over a foreign corporation, it is...

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