APPEAL from the Circuit Court of Cook County; the Hon. WAYNE
W. OLSON, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
This action was brought by two of the three children of Yetta Strauss, now deceased, to recover contribution from their sister, Rose Chernoff, for money expended in support of their indigent mother prior to her death. The complaint was dismissed with prejudice for failure to state a cause of action, and plaintiffs appeal.
Plaintiffs' amended complaint alleges that from May 1, 1963, until her death in 1969, Yetta Strauss was nearly totally dependent upon her children for support and maintenance, that during that period plaintiffs expended over $27,000.00 in her behalf, and that defendant, while financially able to contribute to her support, refused to do so. The complaint requests contribution in the amount of $9,000, one-third of the amount expended.
Following dismissal of the complaint, plaintiffs filed a notice of appeal. Shortly thereafter, however, defendant died. Defendant's executor subsequently filed a motion to dismiss the appeal contending that, upon defendant's death, the action abated. Plaintiff responded to the motion and urged that the action is one which survives the death of the defendant and moved that the decedent's executor be substituted as defendant pursuant to Ill. Rev. Stat. ch. 110, par. 54(2). *fn1 The motions were taken with the appeal.
We initially address ourselves to the motion to dismiss the appeal. Defendant died after her motion to dismiss the complaint had been granted and while the cause was pending on appeal. While diverse statutory and common law rules are usually applied to determine whether an action abates upon the death of a party prior to final judgment, our Supreme Court has recently dealt with the situation where a party dies pending appeal. In Tunnell v. Edwardsville Intelligencer, Inc. (1969), 43 Ill.2d 239, the court held that there is no abatement upon the death of a party if the litigation has progressed to a point at which the merits of the plaintiff's allegations have been affirmatively determined. However, the court further indicated at pages 242, 243:
"There are numerous cases which hold that the death of a plaintiff pending his appeal from a judgment for the defendant in a nonsurviving action abates the action and the appeal must be dismissed. [citations omitted]. Each of these decisions, however, involved a situation in which both the verdict and the judgment were for the defendant in the trial court. They proceeded upon the ground that since the plaintiff does not have a verdict in his favor, "[i]f the judgment below against [plaintiff] * * * be reversed * * *, no new trial could be had, because the action has abated by his death."
In Tunnell, the plaintiff had received a jury verdict in his favor in an action for libel in the court below, however, the verdict had been overturned by the trial judge and judgment was entered for defendant. The court stated, at pages 243, 244:
"In cases like this one, reviewing courts have recognized that it is inappropriate to dismiss an appeal upon the death of the plaintiff-appellant. "Where it is found that the trial court improperly granted a judgment notwithstanding the verdict, it would be an unjust rule that would deny appellant relief as of the date of the submission of the motion * * *." What is significant in such cases, in our opinion, is not any metaphysical notion of merger of the cause of action into the verdict, but rather the circumstances that all factual questions had been resolved before the plaintiff died. No new trial is involved, and the reviewing court is in a position to determine the controversy on the merits. The present case was ripe for judgment when the plaintiff died, and the appellate court properly held that his death did not abate the action."
In the case at bar, defendant also prevailed below. But here there was no hearing on the merits of the plaintiffs' allegations as there had been in Tunnell. In that case, the court expressly rejected the universal application of the old concept of merger of the cause of action with the judgment and substituted a rule which allows a pragmatic exception to avoid unnecessary proceedings. Thus, where defendant has prevailed below, but without any hearing to determine the factual issues, and a party dies pending appeal, a rule that prevents abatement of any action would only result in abatement on remand if the action is one that abates. These are the circumstances with which we are now faced. Since this court is not in a position to determine the entire controversy on its merits, it is therefore appropriate to apply the survival rule which would have been applicable had the issue been presented in the trial court.
• 1, 2 Illinois law determining the abatement or survival of actions is governed by common law rules and statutory provisions changing the common law. *fn2 Application of the correct rule, however, depends upon the nature of the action to which it is applied. It is therefore necessary to characterize the theory of recovery with which we are dealing.
• 3 Plaintiffs have described their claim as one for contribution. *fn3 Contribution, however, is not in itself a theory of recovery but merely a term which describes the result desired. The right to bring such an action is actually based upon a more specific equitable or legal theory.
• 4 In their argument on the merits of this appeal, plaintiffs depend upon a liability imposed by statute *fn4 for assertion of their claim. Thus, it may be argued that the cause of action arises from statute and that the abatement rule pertaining to statutory actions should be applied. Under Illinois law, if an action is one created by statute, and neither that statute nor any other provides for its survival, the action abates upon the death of a party. (Creighton v. Pope County (1944), 386 Ill. 468.) None of the statutes relied upon by plaintiffs contain a provision for the survival of an action for contribution arising from the liabilities created. Therefore, if this action is characterized as statutory in nature, we would appropriately hold that it does not survive.
• 5, 6 Even though this contribution action could never be maintained without the earlier imposition of the statutory liability upon multiple parties, the creation of the right in the primary obligee is not synonomous with the creation of a right to contribution between two or more obligors. These rights are separate and distinct and need not necessarily coincide in time nor theory of recovery. Thus, even though ...