Illinois Minerals Co. v. Miller

Decision Date07 January 1946
Docket NumberGen. No. 44M10.
Citation65 N.E.2d 44,327 Ill.App. 596
PartiesILLINOIS MINERALS CO. et al. v. MILLER et al.
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Alexander County; Loyd M. Bradley, Judge.

Suit by the Illinois Minerals Company, a corporation, and others against William E. McCarty, after whose death, Catherine M. Miller, as executor of deceased's will, was substituted for him as a party, and another, to enjoin solicitation of, and sale of silica and related products to plaintiff's customers by defendants and recover damages for defendants' wrongful appropriation, acquisition and use of a list of such customers. From a judgment enjoining named plaintiff from prosecuting such suit and a suit filed by it in a Missouri circuit court for such damages and dismissing the other plaintiffs' causes of action for damages, plaintiffs appeal.

Reversed and remanded with directions.

Lansden & Lansden, of Cairo, for appellants.

Wilbourn & Wilbourn, of Cairo, for appellees.

BARTLEY, Justice.

The questions for consideration by the Court are the correctness of the following two Orders of the Circuit Court of Alexander County. On November 9th, 1943, upon separate motions of the appellees, the Circuit Court ordered the appellants, and each of them to make and file their election on or before November 24, 1943, as to whether they will proceed at law or in equity for damages growing out of the cause of action alleged. On December 13, 1943, the Circuit Court, on motion of the appellees, entered its Order perpetually enjoining appellant, Illinois Minerals Company, from prosecuting the cause of action as stated in Counts Two, Three, and Four in the cause pending in Alexander County, and also its suit at law filed in the Circuit Court of the City of St. Louis, Missouri, on November 3, 1938; dismissing the claim for damages of the appellant, Aud M. Davis, in Count One of said cause, and dismissing the cause of action of the Ozark Minerals Company for damages both at law and equity if it failed on or before December 28, 1943, to file an election.

On November 3, 1938, the appellant, Illinois Minerals Company, filed its suit at law in the Circuit Court of the City of St. Louis, in the State of Missouri, against appellee, Olive Branch Minerals Company, and William E. McCarty, who is now deceased and of whose will, Catherine M. Miller is executor, claiming damages for the alleged wrongful appropriation, acquisition, and use of the appellant, Illinois Minerals Company's list of customers for the products of the said appellant which it was engaged in producing, mining, milling, and selling, consisting of silica and related products.

On September 12, 1940, the appellants, Illinois Minerals Company, Ozark Minerals Company, and Aud M. Davis, filed their suit in the Circuit Court of Alexander County, Ill., against William E. McCarty and appellee, Olive Branch Minerals Company. William E. McCarty died. Catherine M. Miller, as executor of his will, has been substituted in his stead, and is the other appellee here. The Complaint, as amended, and as it now exists, consists of four Counts, all growing out of the alleged wrongful appropriation, acquisition and use of appellant's list of customers. Count 1 seeks to permanently enjoin the appellees from soliciting and selling silica and related products to the customers of the appellant appearing on the list alleged to have been wrongfully appropriated and acquired, and also asks judgment for damages for the alleged wrongful acts in appropriating, acquiring and using said list of customers. Counts 2 to 4, inclusive, are at law and seek damages for the same alleged wrongful acts, and all are pending against both appellees with the exception that by reason of the action of the Circuit Court of Alexander County and this Court in the case of Illinois Minerals Company et al. v. Catherine M. McCarty et al., 318 Ill.App. 423, 48 N.E.2d 424, the alleged cause of action alleged in Count 3, has been abated as to appellee, Catherine M. Miller as executor of the will of William E. McCarty, deceased. This is a Count for conversion. The Count in equity and the remaining two Counts at law are based on fraud. Illinois Minerals Company et al. v. McCarty et al., 318 Ill.App. 423, 48 N.E.2d 424.

In pursuance of the Order of the Circuit Court of Alexander County of December 13, 1943, the appellant, Illinois Minerals Company, elected to proceed in equity for damages. Appellant, Ozark Minerals Company, failed or refused to make any election. Appellant, Aud M. Davis, elected to proceed at law for damages. Following these elections and failure or refusal to elect, the Circuit Court entered its Order of December 13, 1943, enjoining appellant, Illinois Minerals Company, from prosecuting its cause of action as stated in Counts 2, 3, and 4 of the Illinois action, and its suit at law filed in the Circuit Court of the City of St. Louis, Mo.; dismissing the claim for damages of the appellant, Aud M. Davis, alleged in Count 1; and dismissing the cause of action at both law and equity as to damages of appellant, Ozark Minerals Company, in the event it failed to file its election on or before December 28, 1943. Appellant, Ozark Minerals Company, filed to file an election.

It appears from what has heretofore been said in this opinion, that the ultimate question to be decided by this Court, is whether the so-called doctrine of election of remedies should have been applied in this case.

The general rule cannot be well controverted that a court of equity will, in a proper case, compel a party to make an election in which court he will proceed, and the proceedings in the other court will in such case be stayed where one is seeking to proceed in a court of equity and a court of law for one and the same thing at the same time. Erikson v. Ward, 185 Ill.App. 269;Fetzer v. Clark, 153 Ill.App. 152;Smith v. Billings, 62 Ill.App. 77.

In considering the applicability of the rule, however, in any given case, we must consider the purpose, effect, and limitations of the rule. The doctrine of election of remedies, as more generally understood, is applicable only as between inconsistent remedies for the same injury or cause of action. Jackson v. Industrial Board, 280 Ill. 526, 117 N.E. 705; Pars. 4, 5, and 6 of Chapter on Election of Remedies, 18 Am.Jur. 130, 131. In speaking of election of remedies, courts sometimes fail to observe the distinction between the doctrine of election of remedies and other more or less related phases of the law, such as choice of substantive rights and abatement of actions. This has brought seeming conflict of judicial opinions in relation to the doctrine of election. Par. 5 of Chapter on Election of Remedies, 18 Am.Jur. 130, 131. The doctrine of election of remedies here under consideration is more akin to the rules pertaining to an abatement of an action because of another action pending. The reason for abatement of actions in this sense, is that one should not be vexed with a litigation in one or more suits at the same time for the same cause of action. Par. 14 of Chapter on Abatement and Revival, 1 Am.Jur. 28; Section 17 of Chapter on Abatement and Revival, 1 C.J.S. page 51; Section 38 of Chapter on Abatement and Revival, 1 C.J. page 45; Schneider v. Smith, 271 Ill.App. 414;Smith v. Billings, 62 Ill.App. 77. The doctrine has its application as between suits at law and as between suits in equity in the same jurisdiction. It has no application, however, in most jurisdictions to suits at law and in equity. Lowry v. Kinsey, 26 Ill.App. 309;Haas v. Righeimer, 220 Ill. 193, 77 N.E. 69;Dukeman v. Beisley, 250 Ill.App. 537;Erikson v. Ward, 185 Ill.App. 269.

As between suits at law and in equity, it is said that one cannot be pleaded in abatement of the other because the rules of procedure, relief obtainable, manner of execution, and so forth, in the two courts are not alike. 1 Am.Jur. 37, 38, Par. 31 of Chapter on Abatement and Revival; Section 49 of Chapter on Abatement and Revival, 1 C.J.S. page 79; Section 54 of Chapter on Abatement and Revival, 1 C.J. page 51; Erikson v. Ward, 185 Ill.App. 269. In those jurisdictions like Illinois where it is held that a suit at law or in equity cannot be pleaded in abatement of the other, the procedure was established to bring about the same result by a rule on the plaintiff to make an election whether to proceed at law or in equity. Par. 31 of Chapter on Abatement and Revival, 1 Am.Jur. 37, 38; Par. 7 of Chapter on Election of Remedies, 18 Am.Jur. 130, 131; Section 49 of Chapter on Abatement and Revival, 1 C.J.S. page 79; Sections 54, 57 of Chapter on Abatement and Revival, 1 C.J. page 52; Erikson v. Ward, 185 Ill.App. 269; Section 32 of Chapter on Election of Remedies, 28 C.J.S. page 1107; Section 41 of Chapter on Election of Remedies, 20 C.J. page 44; Smith v. Billings, 62 Ill.App. 77.

In the application of a plea in abatement in such actions as it is pleadable in, among the requirements are that the two causes of actions be the same or substantially the same, so that the action of one would be a bar to the action in the other. Pars. 27 and 28 of Chapter on Abatement and Revival, 1 Am.Jur. 34, 35; Sections 80 and 83 of Chapter on Abatement and Revival, 1 C.J. pages 61, 66; Sections 39 and 42 of Chapter on Abatement and Revival, 1 C.J.S. pages 62, 69.

Likewise, in the application of the rule requiring plaintiff to elect as between a proceeding at law and a proceeding in equity, an election will only be compelled where the suits have substantially the same aim and scope, and the relief sought in each case is substantially the same, so that the one could be pleaded in bar of the other. Par. 30 of Chapter on Election of Remedies, 18 Am.Jur. 150; Section 32 of Chapter on Election of Remedies, 28 C.J.S. page 1106; Section 40 of Chapter on Election of Remedies, 20 C.J. page 43; Fleming v. Courtenay, 95 Me. 135, 49 A. 614.

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