Sunday v. Donovan

• Decision Date: 15 January 1958
• Docket Number: Gen. No. 47181
• Citation: 16 Ill.App.2d 116,147 N.E.2d 401
• Parties: Eiva M. SUNDAY, Appellant, v. Edward J. DONOVAN, Appellee.
• Court: United States Appellate Court of Illinois

Page 401

147 N.E.2d 401

16 Ill.App.2d 116

Eiva M. SUNDAY, Appellant, v. Edward J. DONOVAN, Appellee.

Gen. No. 47181.

Appellate Court of Illinois, First District, Third Division.

Jan. 15, 1958.

Lowell B. Komie, Chicago, for appellant.

Edward J. Paluch, Chicago, for appellee.

FRIEND, Justice.

Defendant, who formerly maintained a cigar jobbing business in Chicago, employed plaintiff as a part-time saleswoman and bookkeeper through the years 1952 and 1953. In her suit brought in the Superior Court of Cook County, she seeks to recover her unpaid wages, and also certain monies which she allegedly loaned defendant during the course of his business activities in Illinois and which he refused to pay. Summons was served on defendant in California, whereupon his counsel filed his special appearance in the Superior Court of Cook County, supported by affidavit, stating that no summons had been served upon defendant while he was present in the State of Illinois, and urging that the Illinois court did not have jurisdiction of his person while he was a resident of California. Pursuant to hearing by the motion judge, an order was entered dismissing plaintiff's complaint on the ground that the court lacked jurisdiction over the person of defendant. Thereupon plaintiff filed a petition for rehearing of her motion to quash the special appearance, alleging that section 17 of the Civil Practice Act, Ill.Rev.Stat.1957, c. 110, § 17, was procedural in its nature and should be applied retroactively to causes of action asserted under this section, regardless of when they accrued. The court denied plaintiff a hearing on her petition, and this appeal followed.

Section 17 of the Civil Practice Act (which became effective January 1, 1956) reads as follows:

'Act submitting to jurisdiction--Process.

'(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 though 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.

'(4) Nothing herein contained limits or affects the right to serve any process in any other manner now or hereafter provided by law.'

Defendant in his brief urges the single point 'that process from tribunal of one State cannot run into another State,' citing Pennoyer v. Neff, 1877, 95 U.S. 714, 24 L.Ed. 565. Thus, in effect, he seeks to raise a constitutional question, contending that the amended section 17 denies him due process of law and violates the fourteenth amendment to the constitution of the United States and section 2 of article II of the constitution of Illinois, S.H.A. We have no jurisdiction to pass upon constitutional questions; but it should be noted that in the recent case of Nelson v. Miller, 1957, 11 Ill.2d 378, 143 N.E.2d 673, 676, the Supreme Court of Illinois held this enactment constitutional. 'The foundations of jurisdiction,' the court said, '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. Stat of 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.' Again referring to the International Shoe Co. case, the court stated: 'While the precise question [there] related to the jurisdiction of the courts of the State over a foreign corporation, it is clear that the general principle underlying the decision applies equally to jurisdiction over nonresident...