Appeal from the Circuit Court of DeKalb County; the Hon. JOHN
S. PETERSEN, Judge, presiding. Reversed and remanded with
Mattie W. Embree brought suit against James D. Gormley for damages resulting from the death of her husband, Waite W. Embree, alleged to have been caused by Gormley's negligence. DeKalb Forge Company was later joined as a defendant and an amended complaint charging that DeKalb Forge was negligent "by its agent and employee, James Gormley" was filed.
DeKalb Forge thereafter filed a counterclaim against its employee, Gormley. By its counterclaim, DeKalb Forge sought to be indemnified by Gormley for any judgment which the plaintiff might obtain against it. Gormley filed a motion to dismiss the counterclaim on the ground that it stated no present cause of action, but only a possible future right of action for indemnity which is contingent upon the outcome of the then pending suit. The trial court allowed Gormley's motion and with respect thereto made the following specific findings:
"1. That the counterclaim purports to assert a cause of action for indemnity, or liability over, against the co-defendant, James Gormley, in the event that defendant-counterclaimant, DeKalb Forge Company, is found liable in the principal case of Mattie W. Embree, Administrator, vs. DeKalb Forge Company and James Gormley.
"2. That said counterclaim does not state a presently existing cause of action for indemnity, but attempts to state a future cause of action which is contingent and dependent upon the happening of a future event or determination.
"3. That section 38 of the Civil Practice Act of Illinois authorizes only counterclaims based upon presently existing rights or causes of action, and does not, by its terms or by implication, authorize a counterclaim upon a possible future or contingent claim based upon the happening of some future event or determination.
"4. That defendant, DeKalb Forge Company, counterclaims against its co-defendant, James Gormley, and that the pending issue does not involve bringing in a third party, or third party practice, and that section 25(2) of the Civil Practice Act has no application to the case at bar.
"5. That the counterclaim filed herein, being based solely upon a future or contingent liability, dependent upon the happening of a future event or determination, does not state a presently existing right or cause of action, and should be dismissed.
"6. Further, the court expressly finds that there is not just reason for delaying enforcement or appeal upon this judgment order."
The court then ordered that the counterclaim be dismissed, and the counterplaintiff electing to stand on its counterclaim, judgment was entered against it. From such dismissal judgment, the defendant and counterplaintiff has appealed.
The sole question presented on this appeal is whether DeKalb Forge Company has a present right to maintain its counterclaim against its servant, Gormley.
It is DeKalb Forge's contention that it has a present right to counterclaim against Gormley to require him to pay any damages to it by reason of his tort; that the Civil Practice Act permits the maintaining of such a counterclaim against Gormley and that DeKalb Forge should not be compelled to institute a separate suit to have its right to indemnity determined.
The sections of the Civil Practice Act relied on by DeKalb Forge are quoted below:
"Within the time for filing his answer or thereafter by leave of court, a defendant may by third-party complaint bring in as a defendant a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. Subsequent pleadings shall be filed as in the case of a complaint and with like designation and effect. The third-party defendant may assert any defenses which he has to the third-party complaint or which the third-party plaintiff has to the plaintiff's claim and shall have the same right to file a counterclaim or third-party complaint as any other defendant. If the plaintiff desires to assert against the third-party defendant any claim which the plaintiff might have asserted against the third-party defendant had he been joined originally as a defendant, he shall do so by an appropriate pleading. When a counterclaim is filed against a party, he may in like manner proceed against ...