A. E. Staley Mfg. Co. v. Swift & Co.

• Decision Date: 18 November 1980
• Docket Number: No. 53134,53134
• Citation: 50 Ill.Dec. 156,84 Ill.2d 245,419 N.E.2d 23
• Court: Illinois Supreme Court
• Parties: , 50 Ill.Dec. 156 A. E. STALEY MANUFACTURING COMPANY, Appellee, v. SWIFT & COMPANY, Appellant.

Page 23

419 N.E.2d 23

84 Ill.2d 245, 50 Ill.Dec. 156

A. E. STALEY MANUFACTURING COMPANY, Appellee, v. SWIFT & COMPANY, Appellant.

No. 53134.

Supreme Court of Illinois.

Nov. 18, 1980.

Rehearing Denied March 27, 1981.

Frederic S. Lane, Robert B. Millner, Kirk R. Ruthenberg, and Mark C. Simon, of Sonnenschein, Carlin, Nath & Rosenthal, Chicago, and Robert D. Winters, of Armstrong, Winters, Prince, Featherstun & Johnson, Decatur, for appellant.

Sacks, Montgomery, Pastore & Levine, New York City, and Samuels, Miller, Schroeder, Jackson & Sly, Decatur (Stuart M. Levine, New York City, and Nicholas J. Neiers, Decatur, of counsel), for appellee.

KLUCZYNSKI, Justice:

This is an appeal from a decision of the circuit court of Macon County granting a motion to dismiss filed by defendant, Swift & Company, under section 48(1)(c) of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 48(1) (c)). The appellate court reversed and remanded, one justice dissenting. (80 Ill.App.3d 122, 35 Ill.Dec. 505, 399 N.E.2d 339.) We granted Swift leave to appeal.

Plaintiff, A. E. Staley Manufacturing Company, is a Delaware corporation with its principal office and place of business in Decatur, Macon County, Illinois. Defendant, Swift & Company, is also a Delaware corporation with its principal place of business in Chicago, and it conducts some business in Macon County.

On March 1, 1976, the parties entered into an agreement whereby Staley purchased from Swift, inter alia, a soybean-processing plant in Des Moines, Iowa. The plant was then under construction by Swift, and, under the terms of the agreement, construction was to be completed by Swift.

On September 12, 1977, at 2:49 p. m., Swift filed suit against Staley in the Polk County district court in Des Moines. In that suit, presently in the discovery stage, Swift seeks recovery of.$4.5 million retained by Staley to secure construction of the soybean-processing plant.

Shortly thereafter, on the same day as the filing of Swift's Iowa action, Staley filed suit against Swift in Illinois in the Macon County circuit court. Staley seeks $39.8 million in damages allegedly sustained as a result of Swift's failure to fulfill its obligation of completing construction of the soybean-processing plant.

In its Iowa action, Swift has also named French Oil Mill Machinery Company as a defendant. French allegedly made certain guarantees to Swift, and Swift seeks indemnification from French for much of Staley's claim against Swift. Swift claims that it is not aware of any basis for obtaining jurisdiction over French in the Illinois courts.

On October 3, 1977, Swift filed in the Illinois action a document captioned: "Motion To Dismiss For Forum Non Conveniens Or In The Alternative To Stay This Proceeding Pending Disposition Of A Prior Suit In Iowa Between The Parties Hereto Concerning The Same Contract Which Is The Subject Matter Of This Suit." In the body of the motion itself, Swift explains at some length that it filed its Iowa action prior to Staley's Illinois action, but it relies primarily on forum non conveniens as the basis of its motion. The circuit court denied the motion, finding that both parties have their principal offices in Illinois and that, under the terms of their agreement, Illinois law would govern interpretation of the agreement. The appellate court affirmed, citing the same factors as to the circuit court, but also finding that most of the principals involved are Illinois residents, that most discoverable paper work is in Decatur or Chicago, and that the economic impact of the litigation would be greater on Illinois. (65 Ill.App.3d 427, 22 Ill.Dec. 347, 382 N.E.2d 667.) On March 29, 1979, this court denied a petition for leave to appeal filed by Swift. 74 Ill.2d 585.

Prior to this court's denial of Swift's petition for leave to appeal, Swift filed its second motion to dismiss in the Macon County circuit court on January 11, 1979. Relying on section 48(1)(c) of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 48(1)(c)), Swift claimed that it had filed its Iowa action prior to Staley's Illinois action and that dismissal of Staley's action was therefore required. Section 48(1)(c) provides:

"Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:

That there is another action pending between the same parties for the same cause."

The circuit court found that Swift had, in fact, filed its action in Iowa 41 to 71 minutes prior to Staley's filing of the Illinois action. Because of Swift's prior filing in Iowa, the circuit court felt that it was compelled to grant Swift's motion to dismiss, and it did so. On appeal by Staley, the appellate court reversed the judgment of the circuit court and remanded the cause to that court. (80 Ill.App.3d 122, 35 Ill.Dec. 505, 399 N.E.2d 339.) Finding that section 48(1)(c) was adopted from a New York statute and ruling that judicial construction of the New York statute accompanied Illinois' adoption of section 48(1)(c) (Hansen v. Raleigh (1945), 391 Ill. 536, 549, 63 N.E.2d 851), the appellate court held that the respective filing times of the actions should be disregarded and that section 48(1)(c) is inoperative when both actions are filed on the same day, citing Avery v. Title Guaranty & Trust Co. (1930), 230 App.Div. 519, 245 N.Y.S. 362. The appellate court held that Swift's section 48(1)(c) motion is addressed to the discretion of trial court and that Swift's prior filing of an action in Iowa did not mandate dismissal of Staley's Illinois action. The appellate court accordingly directed the circuit court to consider the motion as calling for the exercise of the court's discretion. 80 Ill.App.3d 122, 126, 35 Ill.Dec. 505, 399 N.E.2d 339.

In its appeal to this court, Swift argues that section 48(1)(c) mandates dismissal of Staley's action and that the appellate court's decision fails to recognize the salutary purpose of that statute to avoid duplicative litigation. Swift points out that the New York decision in Avery, relied upon by the appellate court, is not a decision of that State's highest court and that this court has in the past refused to follow New York cases under section 48(1)(c). See Skolnick v. Martin (1964), 32 Ill.2d 55, 57-60, 203 N.E.2d 428.

Our reading of Skolnick indicates that the court there refused to follow New York cases because it found them to be contrary to "the purpose and spirit of the Civil Practice Act" (32 Ill.2d 55, 59, 203 N.E.2d 428), and it is a well-recognized rule of statutory construction that the interpretation placed upon a statute need not be followed by the courts of a State adopting that statute where such an interpretation is inconsistent with the policy of the adopting State (2A A. Sutherland, Statutes and Statutory Construction sec. 52.02, at 330 (4th ed. 1973)). There therefore existed a basis for the court's decision in Skolnick to refuse to follow New York cases.

As to the New York decision in Avery, relied upon by the appellate court here, we acknowledge that the decision is of an intermediate court and is not entitled to the same effect as a decision of the court of last resort in that State. (2A A. Sutherland, Statutes and Statutory Construction sec. 52.02, at 330 (4th ed. 1973).) We nonetheless find that adoption of the Avery rationale, for the reasons stated hereinafter, does not subvert Illinois policy of avoiding duplicative litigation, and we agree with the appellate court that dismissal of Staley's action was not mandated by section 48(1)(c).

Before discussing in detail the merits of the issues presented, we wish to express our disapproval of the manner in which Swift has sought dismissal of Staley's action. First, we find it somewhat inconsistent for Swift to speak of the virtues of avoiding multiplicity of litigation and then to assert its bases for dismissal one at a time as it has done here. Such a piecemeal approach does little to streamline litigation. Second, Swift has sought dismissal under the doctrine of forum non conveniens, and later under section 48(1)(c), as if these were two mutually exclusive procedural devices. To the contrary, we perceive section 48(1)(c) and forum non conveniens as interrelated procedural devices which may and should be used together when another action is pending and defendant feels that one forum is inconvenient. We acknowledge that the pendency of another action, unlike availability of another forum (Restatement (Second) of Conflict of Laws sec. 84 (1971)), is not a prerequisite to a claim of forum non conveniens as it is under section 48(1)(c), and we acknowledge that the doctrine of forum non conveniens does not encompass all factors which may be relevant in seeking dismissal or other appropriate relief under section 48(1)(c). Section 48(1)(c) and forum non conveniens should, nonetheless, be used together where, as here, there is another action pending and defendant believes that one forum is inconvenient. Third, we question Swift's filing of its motion under section 48(1)(c) during the pendency of its prior appeal from the circuit court's forum non conveniens ruling, since the circuit court was without jurisdiction to entertain the second motion at that time. (City of Chicago v. Myers (1967), 37 Ill.2d 470, 472, 227 N.E.2d 760.) We nonetheless choose to address the merits of the issues raised, since we consider this to be a proper case for the exercise of our supervisory authority (Ill.Const.1970, art. VI, sec. 16). A Civil Practice Act question of considerable importance to the bar and the courts is presented, this is the second interlocutory appeal in this cause, and no hearing on the merits has yet been held. (Crane Paper Stock Co. v. Chicago & Northwestern Ry. Co. (1976), 63 Ill.2d 61, 67-68, 344 N.E.2d...