Skolnick v. Martin

• Decision Date: 24 November 1964
• Docket Number: No. 38597,38597
• Parties: Sherman H. SKOLNICK, Appellee, v. Charles T. MARTIN et al., Appellants.
• Court: Illinois Supreme Court

Page 428

203 N.E.2d 428

32 Ill.2d 55

Sherman H. SKOLNICK, Appellee, v. Charles T. MARTIN et al., Appellants.

No. 38597.

Supreme Court of Illinois.

Nov. 24, 1964.

As Modified on Denial of Rehearing Jan. 19, 1965.

Bell, Boyd, Lloyd, Haddad & Burns, Charles T. Martin, J. William Hayton, and Frank Glazer, Chicago, for appellants.

Sherman H. Skolnick, pro se.

DAILY, Justice.

We have granted leave to appeal in this case to consider widely divergent constructions of section 48(1)(c) of our Civil Practice Act arrived at by the Appellate Court for the First District in F & F Larboratories, Inc. v. Chocolate Spraying Co., 6 Ill.App.2d 299, 127 N.E.2d 682, and in Skolnick v. Martin, 47 Ill.App.2d 167, 197 N.E.2d 739, the instant case, wherein the court declined to adhere to its former decision. It is the direction of the section that a defendant in our courts may move for the dismissal of an action against him on the ground that 'there is another action pending between the same parties for the same cause,' (Ill.Rev.Stat.1961, chap. 110, par. 48(1)(c),) and the precise question here is whether dismissal is authorized when the 'other action' is one pending in a Federal court.

The circumstances under which the plaintiff in this case commenced an action against defendants in both the superior court of Cook County and a Federal district court, (seeking identical amounts of damage on identical facts,) are fully set forth in the opinion of the Appellate Court, as are the circumstances under which the superior court dismissed the State action on the basis of section 48(1)(c). We see no purpose in detailed repetition. However, before turning to the principal problem of statutory construction presented, it is first necessary to point out that the Appellate Court was in error when, as an alternative basis for decision, it suggested that the two actions were not 'for the same cause,' as the section requires. The section refers to 'the same cause,' not to the same 'cause of action,' and it has been held that actions are 'for the same cause,' when relief is requested on substantially the same state of facts. (Leven v. Birrell, Sup., 91 N.Y.S.2d 729, 731; cf. Meier v. Hilton, 257 Ill. 174, 100 N.E. 520; Carlin v. City of Chicago, 262 Ill. 564, 104 N.E. 908; James v. Langley, 323 Ill.App. 268, 55 N.E.2d 297; Marco v. Dulles, (D.C.N.Y.) 177 F.Supp. 533, 549-550.) Measured by this test, the two actions here were 'for the same cause.' And in any case, we have held that identity of cause of action depends upon identity of transaction or occurrence. Geneva Construction Co. v. Martin Transportation Co., 4 Ill.2d 273, 288, 122 N.E.2d 540.

Historical background shows that, prior to the enactment of the Civil Practice Act, it was the general rule that where a party began two actions for the same cause within the same jurisdiction, the pendency of the first was ground for the abatement of the second, the reason being that one should not be vexed with a litigation in more than one action at the same time. (Gage v. City of Chicago, 216 Ill. 107, 74 N.E. 726; Branigan v. Rose, 3 Gilman 123; 1 I.L.P. Abatement, § 21.) However, it was likewise held that the general rule did not apply to actions brought in different jurisdictions for the same cause, and thus that it was no ground for the abatement of a proceeding in an Illinois court merely because another action was pending in a court of the United States or a sister State. (Illinois Life Insurance Co. v. Prentiss, 277 Ill. 383, 155 N.E. 554; Greer v. Young, 120 Ill. 184, 11 N.E. 167; 1 I.L.P. Abatement § 31.) For reasons later apparent, it should be noted that New York followed the same general rule and made the same exception. (Oneida County Bank v. Bonney, 101 N.Y. 173, 4 N.E. 332.) This was the state of the law when the first antecedent of section 48(1)(c) of the present Civil Practice Act was enacted to provide that a defendant may move for dismissal of an action or suit on the ground that 'there is another action pending between the same parties for the same cause.' (Smith-Hurd Stat.1933, chap. 110, par. 172.) And, in reality, the issue here is what was intended by section 48(1)(c) insofar as actions pending in a Federal court are concerned.

Judicial interpretation of section 48(1)(c) in the setting of this case was first made in the F & F Laboratories case, (6 Ill.App.2d 299, 127 N.E.2d 682) where it was construed as authorizing the dismissal of a State action where there was a suit involving the same parties and the same subject matter pending in a Federal court. The ratio decidendi was that the plain and unambiguous language of the statute permitted no other construction. Nine years later, in the instant case, the same court reached an exactly contrary result, (47 Ill.App.2d 167, 197 N.E.2d 739) and decided that the section of the Civil Practice Act involved had done nothing more than to allow the matter of abatement to be raised by a motion to dismiss rather than by plea. It was pointed out, first, that section 48(1)(c) of our act had been patterned after a similar provision in the New York Rules of Civil Practice, (see: Smith-Hurd Anno.Stat., chap. 110, sec. 48, Historical and Practice Notes, p. 690,) second, that the New York rule has been construed as applying only to other actions pending in the courts of New York, third, that it was the prevailing rule in the United States that a case in a State court may not be dismissed by virtue of another action pending in a Federal court, and on these bases it was reasoned there had been no legislative intent to change the law as it had prevailed prior to the enactment of section 48(1)(c). The arguments of the respective parties in this court follow the lines of these conflicting decisions.

When we consider the purpose for which the Civil Practice Act was enacted, and look to the simple and unambiguous language by which the legislature expressed itself, it is our opinion that the section was intended to grant a...