APPEAL from the Appellate Court for the First District;
heard in that court on appeal from the Superior Court of Cook
County; the Hon. DONALD S. McKINLAY, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
This court has allowed leave to appeal from an Appellate Court judgment affirming the dismissal of a supplemental complaint and the denial of a motion to enjoin the defendant railroad from enforcing an injunction it obtained in Michigan restraining plaintiff Lois M. Kahl, then administratrix, from proceeding with her wrongful death action in the superior court of Cook County.
The issues are essentially whether the Illinois court, having prior jurisdiction of a wrongful death action instituted by a nonresident plaintiff, must recognize an out-of-State injunction restraining the plaintiff from proceeding with that action; and whether the Illinois court, to protect its jurisdiction of the wrongful death action, may issue a counterinjunction restraining defendant from enforcing its injunction against plaintiff in the State of her residence.
The operative facts pertaining to these issues are uncontroverted. Plaintiff, Lois M. Kahl, as administratrix of her deceased husband's estate, instituted suit against defendant, Grand Trunk Western Railroad Company, on February 16, 1956, in the Illinois court, under the Michigan Wrongful Death Act (Mich. Stat. Ann., sec. 27.712) for the death of her husband on February 16, 1955, allegedly through the negligence of the defendant railroad. Defendant obtained, without notice to plaintiff, a temporary injunction in Cass County, Michigan, where plaintiff resided, restraining plaintiff from prosecuting her Illinois action. Plaintiff thereupon filed a supplemental complaint in the Illinois court, alleging that defendant had failed to question plaintiff's right to proceed in the Illinois court by appropriate motion therein; that plaintiff believed that she could not obtain a fair trial in Cass County, Michigan; that such Michigan suit was instituted by defendant to prevent plaintiff from obtaining a fair trial in the Illinois courts and to force her into an unjust settlement of her cause of action, and would result in irreparable injury.
On the basis of these allegations, plaintiff moved for a temporary injunction enjoining the enforcement of the Michigan injunction. On August 9, 1956, the trial court denied plaintiff's motion, and also dismissed her supplemental complaint, although no answer or counteraffidavits were filed by defendant in connection therewith. Plaintiff appealed, and the Appellate Court affirmed the trial court on May 21, 1957.
Plaintiff did not appeal from the Michigan injunction when it was learned that the appeal bond would not have the effect of staying the proceedings. Thereafter, plaintiff was arrested pursuant to a body attachment issued by the Michigan court on the application of defendant's counsel, O'Connor, and was advised that she would be imprisoned for contempt unless she complied with the injunction. Although she then wrote to her Illinois attorney discharging him and directing him to withdraw her case from the Illinois courts, she subsequently advised him that the letter did not express her true desires, but had been coerced by threat of imprisonment by defendant's counsel.
A second injunction suit was instituted by defendant in Cass County, Michigan. Plaintiff did not appear and was defaulted, and an order was entered by the Michigan court on July 17, 1957, enjoining her from further prosecuting her Illinois action and directing her to withdraw it.
Thereafter, on September 6, 1957, upon a showing that defendant's attorney was insisting that plaintiff sign a stipulation to dismiss her Illinois proceedings, a Justice of this court entered an order restraining the defendant from taking further action against plaintiff on the two Michigan injunction suits, "or in any other suit filed in said Court of Cass County, Michigan, or in any other Court, until the Supreme Court of Illinois has acted upon the Petition for Leave to Appeal." On September 20, 1957, this court denied defendant's motion to vacate that restraining order, allowed the petition for leave to appeal, and entered a similar injunction restraining defendant until this court disposed of the case.
On the same day, defendant's counsel, O'Connor, who is also prosecuting attorney for Cass County, Michigan, filed a petition in the probate court of Cass County to remove plaintiff as administratrix. On September 26, 1957, the probate court of Cass County removed plaintiff as administratrix and appointed Adam Greenawalt as administrator to succeed her.
Greenawalt's affidavit, filed in this court, indicates that he is 83 years of age, is bailiff of the circuit court of Cass County; that upon being appointed administrator he was advised by defendant's counsel, O'Connor, that the estate might have a cause of action against the railroad; that he contacted an attorney and instructed him to consult with O'Connor, but this attorney did not desire to handle the case, whereupon Greenawalt advised O'Connor that he desired to retain counsel outside of Cass County and asked O'Connor to have Donahue, an attorney from another county, contact him. Donahue turned the matter over to his assistant, Drew, who instituted action in Cass County on behalf of Greenawalt as administrator of the estate.
On November 20, 1957, Lewis W. James was appointed to succeed Greenawalt as administrator, and in Greenawalt's letter to his successor he stated that he had not even talked to Drew about the case, and that all arrangements for Drew to represent the claim against the railroad were made by the defendant railroad's attorney O'Connor.
With reference to these circumstances, the railroad takes the position that it did not violate the temporary injunctive order of September 20, 1957, because the act of its Michigan attorney in having plaintiff removed as administratrix was taken by O'Connor as prosecuting attorney for Cass County, Michigan, despite defendant's request to defer such action. Defendant also explained that O'Connor advised defendant that he intended to prosecute the petition for plaintiff's removal on his own, irrespective of the railroad's instructions, since under his contract with defendant, his duties as public officer would prevail over his duties as counsel. Moreover, defendant contends that even if the railroad had instituted the removal proceeding, that action would not constitute a violation of the terms of this court's order.
On this appeal plaintiff argues that she had an unquestionable right to file the action in the Illinois court; that where a court has obtained prior jurisdiction of an action, injunctive relief is proper to prevent defendant from transferring the action elsewhere through an action in another forum; and that neither the full-faith-and-credit clause nor comity require the Illinois court to respect the Michigan venue statute and the decision of the Michigan court in this case.
The defendant argues, however, that this court will not, by counterinjunction, aid a citizen of another State to violate an injunction against prosecuting an action in Illinois; that the counterinjunction cannot be justified to protect the prior injunction of the Illinois court, since the Michigan injunction was in personam only; and that such counterinjunction would compel a party to give up vested rights and would violate the full-faith-and-credit and due-process clauses of the Federal constitution.
The precise issues of the operative effect of an out-of-State injunction on pending litigation, and the propriety of the issuance of a counterinjunction involved herein, have never been adjudicated by this court. Consequently, in resolving those issues we shall consider not only the cases of other jurisdictions relied upon as precedent, but the relevant policies of this jurisdiction underlying the issues, as well as the wealth of law and comment by courts and scholars who have wrestled with the legal strategem of this battle over the selection of the proper forum for trial. Place of Trial in Civil Actions, 43 Harv. L. Rev. 1217; 61 Yale L.J. 1206; 14 Minn. L. Rev. 494; 6 A.L.R.2d 896 et seq.; 122 A.L.R. 1425 et seq.; 85 A.L.R. 1351 et seq.; 37 Harv. L. Rev. 157; 72 U. Pa. L. Rev. 429.
In the instant case it is uncontroverted that the Illinois trial court had proper jurisdiction of the parties, and that it was bound under the full-faith-and-credit clause of the Federal constitution to recognize the Wrongful Death Act of Michigan, and could not refuse to entertain plaintiff's action on the ground that it was based on the wrongful death statute of a sister State. (First National Bank of Chicago v. United Air Lines, Inc., 342 U.S. 396, 96 L. ed 441; Hughes v. Fetter, 341 U.S. 609, 95 L.ed. 1212; Miles v. Illinois Central Railroad Co., 315 U.S. 698, 703, 86 L.ed. 1129; 61 Yale L.J. 1206.) Moreover, it is the undisputed policy of this State to keep its courts open to residents and nonresidents alike. (Wintersteen v. National Cooperage and Woodenware Co., 361 Ill. 95; Opp v. Pryor, 294 Ill. 538.) In that connection, the court in the Wintersteen case stated at p. 101: "Neither does the fact that the plaintiff is a non-resident deprive him of his remedy in the courts of this State. There is no statute in the State denying redress ...