Dross v. Farrell-Birmingham Co.

• Decision Date: 25 June 1964
• Docket Number: FARRELL-BIRMINGHAM,Gen. No. 49278
• Citation: 51 Ill.App.2d 192,200 N.E.2d 912
• Parties: Frank DROSS, Plaintiff-Respondent-Appellant, Inland Steel Company, a corporation, Intervenor-Respondent-Appellee, v.COMPANY, Inc., a corporation, Defendant-Petitioner-Appellee.
• Court: United States Appellate Court of Illinois

Page 912

200 N.E.2d 912

51 Ill.App.2d 192

Frank DROSS, Plaintiff-Respondent-Appellant Inland Steel Company, a corporation, Intervenor-Respondent-Appellee, v. FARRELL-BIRMINGHAM COMPANY, Inc., a corporation Defendant-Petitioner-Appellee.

Gen. No. 49278.

Appellate Court of Illinois, First District, Third Division.

June 25, 1964.

Schultz, Krinsley, Voorheis & Hedberg, Chicago, for appellant.

Gerard E. Grashorn, Edward J. Wendrow, Chicago, for appellees.

DEMPSEY, Justice.

This is an appeal from an order vacating a default judgment which the plaintiff Frank Dross obtained against the defendant, Farrell-Birmingham Corporation. The defendant's motion to dismiss the appeal was taken with the case. There are three questions to be decided (1) was the motion made by the defendant within 30 days of the default judgment a motion to vacate; (2) if the motion was a motion to vacate, did the court err in granting it and (3) if the court was not in error is the court's order appealable?

Dross was employed by the Inland Steel Company in that company's Lake County, Indiana, mill. On January 28, 1960, he was operating a grinding wheel when it suddenly disintegrated. Fragments of the wheel struck him upon the face and head, resulting in the injuries complained of here. Farrell-Birmingham Company, a Connecticut corporation, was alleged by Dross to be the manufacturer of the wheel which had caused his injuries and on January 24, 1962, he commenced an action against that company in the Superior Court in Lake County, Indiana. On the following day, January 25th, he commenced an identical action against it in the Superior Court of Cook County, Illinois.

Copies of the complaint and summons in the Illinois action were served on Farrell-Birmingham at its Chicago office and were forwarded to the company's home office in Connecticut. In affidavits submitted at a later date, the defendant claimed that employees at its home office presumed that these papers concerned the Indiana suit and commingled them with the papers in that suit. Later, this error was repeated when Inland Steel Company served notice upon the defendant at its office in Chicago that it would seek to intervene because of the payments made to Dross in workmen's compensation benefits.

At any rate, Farrell-Birmingham Company made no appearance in the Illinois case and on May 31, 1962, a default judgment was entered against it awarding plaintiff damages in the amount of $35,000.00. On June 29, 1962, Farrell-Birmingham filed a motion, pursuant to section 68.3 of the Civil Practice Act, to vacate the default judgment and, pursuant to section 48(1) (c) of the same Act, to dismiss the action with prejudice on the grounds that a former action was pending in the same matter in Indiana. The motion stated, without giving any details, that there was a good and meritorious defense to the action. On January 14, 1963, the defendant submitted an amendment to its motion making more specific the allegations contained in the original motion. The amendment set out the confusion that resulted from the filing of the Illinois and Indiana actions one day apart, stated that the defendant had a meritorious defense in that it did not manufacture grinding wheels and did not sell Inland Steel any wheel manufactured by it, and asked permission to answer the complaint. The amendment was supported by the affidavits heretofore referred to.

The plaintiff strenuously opposed the amendment. His objections, 33 pages in length and accompanied by 24 exhibits, may be summarized as follows: the defendant could not have been confused by the two actions because they obviously were distinct from one another; the defendant was fully aware of the Illinois action because its midwest manager, who was in charge of its Chicago office, had been notified twice: he had seen the complaint and summons and he had received Inland Steel's petition for leave to intervene; the defendant not only failed to appear in response to the summons, it also failed to appear at the hearing on Inland's petition, although notified that the petition would be presented in a courtroom in the Cook County Courthouse; at the time the defendant moved to dismiss the Illinois case it had pending in the Indiana court a plea in abatement challenging the jurisdiction of the Indiana court over the defendant; the Indiana action was vulnerable to this motion and that is why the plaintiff had filed the second case in Illinois; the defendant did not reveal the plea in abatement to the Illinois court, but made material misrepresentations in its motion to dismiss by creating the false impression that the Indiana action was in active litigation; the defendant deliberately and inequitably sought dismissal of the complaint with prejudice so that it could dispose of the Illinois case by this motion, and then the Indiana case by its plea in abatement and thus, because statutes of limitation had run, deprive the plaintiff of any forum in which to try his case.

The plaintiff argued in his objections, as he has in this court, that the defendant's original motion of June 29, 1962, was not a motion to vacate and, therefore, could not be amended on January...