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Lau v. West Towns Bus Co.

OPINION FILED MARCH 20, 1959

MARGARET B. LAU, APPELLEE,

v.

WEST TOWNS BUS COMPANY, APPELLANT.



APPEAL from the Superior Court of Cook County; the Hon. LESLIE E. SALTER, Judge, presiding.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 19, 1959.

This is an appeal from a judgment of the superior court of Cook County, which was entered upon a jury verdict in favor of plaintiff in the sum of $75,000. In addition to alleging error in instructing the jury, and that the verdict was excessive and contrary to the evidence, defendant contends that the court never acquired jurisdiction over it, and that the entry of judgment was an unconstitutional deprivation of its property without due process of law. Upon this debatable constitutional issue defendant appeals directly to this court.

On May 10, 1952, plaintiff was injured while riding on a bus operated by Raymond T. O'Keefe, Jr., as reorganization trustee in bankruptcy, in the United States District Court, in the matter of Chicago & West Towns Railways, Inc., a corporation, debtor. The injury occurred when the bus collided with a motor vehicle driven by William Hathaway. On March 6, 1953, plaintiff filed suit against both O'Keefe, as trustee, and Hathaway, alleging that her injuries resulted from their joint negligence, and praying judgment in the sum of $35,000. Both defendants appeared and answered, denying liability.

Thereafter, and while this cause was pending, O'Keefe, as trustee, submitted a plan in the Federal District Court for reorganization of the debtor. On July 2, 1954, a consummation order was entered in the bankruptcy proceeding by which all of the debtor's property was vested in the reorganized Chicago & West Towns Railways, Inc., a corporation. The order further provided in part as follows:

"(6) The Company shall have the right, if it so elects, to be substituted at its own cost and expense as a party in lieu of the Debtor or of the Trustee in any or all litigation or proceedings by or against the Debtor or the Trustee or to which either of them were parties, now pending, on appeal or otherwise, or to continue such litigation or proceedings in the name of the Debtor or of the Trustee, and the Trustee shall be relieved of any further duty or responsibility in respect of such litigation or proceedings.

"(7) The Company is authorized and directed to pay, in due course, all costs and expenses of administration of the estate of the Debtor which shall be a charge upon the properties herein authorized to be transferred and conveyed to the Company, including costs of printing and mimeographing documents required for consummation of the Plan and the charges of fiduciaries and agents for performing services thereby required, and allowances of fees and reimbursement of expenses heretofore or hereafter incurred to the extent allowable under Chapter X of the Bankruptcy Act, and all other expenditures and allowances which may be approved or made by the Court to the extent that they have not been paid by the Trustee. The Company shall assume at the Closing Time and pay in due course without the further order of this Court, the following claims: * * *

"(d) All claims and obligations falling within the classes of claims which the Trustee has been authorized to incur or pay in the operation of the properties of the debtor or otherwise by any order or orders of the Court, when the amounts thereof have finally been determined, and to the extent that they have not been paid by the Trustee.

"The obligation of the Company to pay such claims shall in each case be subject to any and all applicable statutes of limitation, without any tolling thereof by virtue of this order. The Board of Directors of the Company is hereby authorized to provide for the adjustment, compromise, payment, discharge, installment payment, or other disposition by the Company of all claims, liabilities and obligations.

"(8) From and after the Closing Time there shall be no liability upon the Trustee for any obligations incurred by him in his official capacity as such Trustee growing out of his operation theretofore of the property and business of the Debtor pursuant to the authorizations of this Court, and the Company shall be and become liable for any and all such obligations and shall indemnify and hold the Trustee harmless against such obligations."

Thereafter the corporation took over the operation of the bus line, and on November 29, 1956, changed its name to West Towns Bus Company. On February 15, 1957, present counsel for defendant entered their substitution of appearance for defendant O'Keefe, as trustee, although he had previously been discharged as such trustee. On January 29, 1958, on motion of plaintiff for leave to amend her complaint instanter, the ad damnum was increased from $35,000 to $175,000; and on February 28, 1958, on plaintiff's motion, the trial court dismissed Hathaway as a party defendant and substituted in lieu of defendant O'Keefe, as trustee, the present defendant, West Towns Bus Company, herein referred to as defendant.

The trial before the jury began on March 26, 1958. Present counsel appeared for defendant and moved for leave to file its appearance and answer. The answer admitted the operation of the motor bus by O'Keefe, as trustee, and the collision, denied any act of negligence on the part of O'Keefe, as trustee, and the injuries of plaintiff, and averred that defendant was not operating the motor bus at the time of the accident, and that the cause of action against it is barred by the Statute of Limitations. The court denied the motion and ordered that the appearance and answer filed on behalf of O'Keefe, as trustee, stand as the appearance and answer of the defendant, West Towns Bus Company. This motion was renewed on April 1, 1958, at which time the court entered an appropriate written order of denial. On April 2, 1958, judgment was entered on the verdict finding defendant guilty and assessing plaintiff's damages in the sum of $75,000.

Defendant contends that the court had no jurisdiction over it because it was not served with summons; that no cause of action was pleaded or proved against it; and that any cause of action against it is barred by the Statute of Limitations, and in any event, the increase in the ad damnum is so barred.

We believe the defendant was properly before the court without service of summons. Section 20 of the Civil Practice Act, (Ill. Rev. Stat., 1957, chap. 110, par. 20,) provides that: "(1) Prior to filing any other pleading or motion, a special appearance may be made either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person of the defendant. A special appearance may be made as to an entire proceeding or as to any cause of action involved therein. Every appearance, prior to judgment, not in compliance with the foregoing is a general appearance. * * * (3) If the court sustains the objection, an appropriate order shall be entered. Error in ruling against the defendant on the objection is ...


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