United States District Court, Northern District of Illinois, E.D
December 11, 1973
HERMAN E. LEICK, ADMINISTRATOR OF THE ESTATE OF JAMES A. MAXWELL, DECEASED, PLAINTIFF,
FRANCIS J. PHELAN AND PATRICIA ANDERSON, SPECIAL ADMINISTRATORS OF THE ESTATE OF FRANK A. ANDERSON, DECEASED, DEFENDANTS.
The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes on the defendants' motion to dismiss.
This is an action seeking to redress the wrongful death of
James A. Maxwell pursuant to the Illinois Wrongful Death Statute,
Chapter 70, § 1 et seq. of the Illinois Revised Statutes.
Jurisdiction in this Court is based on diversity of citizenship.
The amount in controversy allegedly exceeds ten thousand dollars
exclusive of interest and costs.
The plaintiff, Herman E. Leick, is a resident of the City of
Corbin, Kentucky, and was the duly appointed Administrator of the
Estate of James A. Maxwell, deceased, by the Knox County Court on
September 21, 1973. The defendants are Francis J. Phelan and
Patricia Anderson, both residents of the state of Illinois. The
plaintiff seeks to have this Court name them Special
Administrators of the Estate of Frank A. Anderson, deceased,
pursuant to the Illinois Civil Practice Act, Chapter 110, Section
54. No petition for Letters of Administration has been filed in
the matter of the Estate of Frank A. Anderson. The plaintiff
seeks to have Frank A. Anderson's spouse, Patricia Anderson,
named as a party-defendant, pursuant to Chapter 110, Section 54
of the Illinois Revised Statutes, so that she might be properly
advised of the pending action against said decedent's estate.
The plaintiff in the complaint alleges the following facts,
1. On or about July 20, 1972 Frank A. Anderson was
operating a motor vehicle on an Illinois highway,
Route 25, moving in a northwesterly direction
toward a Chicago and Northwestern Railroad bridge
in the vicinity of Gilbert Street in St. Charles,
2. James A. Maxwell was a passenger in the automobile
driver by Frank A. Anderson. At all times pertinent
to this action James A. Maxwell was exercising due
care and caution for his own safety and the safety
of others, and Frank A. Anderson had the duty to
operate the motor vehicle so as not to injure James
3. In violation of this duty Frank A. Anderson did
commit one or more of the following acts:
a. did operate the vehicle at an excessive speed in
light of the conditions prevailing;
b. did operate the vehicle into the wrong lane of
c. did operate the vehicle without proper lookout
for traffic or obstructions.
4. As a direct and proximate result of one or more of
the above negligent acts the motor vehicle in which
they were riding was caused to collide with a
railroad bridge's foundation running over Route 25,
causing the deaths of James A. Maxwell and Frank A.
The defendants, in support of their instant motion to dismiss,
contend that the instant complaint attempts to join Patricia
Anderson and Francis J. Phelan as representative
parties-defendant for Frank A. Anderson while, in fact, Francis
J. Phelan and Patricia Anderson are not representatives of the
Estate of Frank A. Anderson and are not subject to jurisdiction
in a representative capacity pursuant to Chapter 110, Section 54
of the Illinois Revised Statutes.
The plaintiff contends that the defendants are proper parties
to the instant action.
It is the opinion of this Court after examining the relevant
statute and case law that Francis J. Phelan and Patricia A.
Anderson are not proper party defendants to the instant action
and thus the instant action should be dismissed without
The crucial point of contention raised by the parties in the
instant action is whether Section 54(2) of Chapter 110 of the
Illinois Revised Statutes provides for the appointment of a
special administrator only in pending cases wherein a party to
the action dies and not in cases wherein the action has not yet
been commenced at the time of the parties' death.
Legal scholars have developed a three-fold imperative for the
interpretation of a statute: "(1) read the statute; (2) read the
statute; (3) read the statute."*fn1 There are times when
adherence to this simple principle cannot only be the first step
in the interpretative process but also the last.
A reading of Section 54(2) clearly reveals that the statute
provides only for the appointment of a special administrator in
pending cases wherein a party to the action dies and does not
apply in a case wherein the action has not been commenced before
the putative defendant has died.*fn2
Further, an examination of Section 54 reveals that the language
of the first section provides, in relevant part:
"Change of interest or liability. If by reason of
marriage, bankruptcy, assignment, or any other event
occurring after the commencement of a cause or
proceeding, either before or after judgment, causing
a change or transmission of interest or liability"
The intention of the legislature is clear. The language
specifically states that certain events occurring after
commencement of a cause of action will give rise to an order for
the proper parties to be substituted.
Subsection 2 of Section 54 is merely another event giving rise
to an order, upon proper motion, for a proper party to be
substituted, in this case in the event of death. There is
nothing to indicate that the legislature's intention in enacting
the second subsection of Section 54 should be construed
differently than the first subsection. When the language of
Section 54(2) is read in context with the whole of Section 54
there is no doubt that subsection 2 only applies where an action
has already been commenced.
This interpretation of the statute is supported by its
legislative history and background.*fn3 Section 54(2) replaced
former Section 10 to 18 inclusive and 23 of the Illinois
Abatement Act. Under the former Section 12 of the Abatement Act,
if there were multiple plaintiffs or defendants and any one of
them died before final judgment, the action by or against the
deceased person abated although it could be continued by or
against the survivors. A new action had to be brought by or
against the representatives of the deceased person as to whom the
action had abated. Under 54(2) the death of a party does not
abate the action as to him if the action survives, but his
representative may be substituted in the same cause.
The use of the word "substituted" in Section 54(2) makes it
mandatory that there be a pending action because without a
pending action no valid substitution can be made. See Reed v.
Long, 122 Ill. App.2d 295, 259 N.E.2d 411 (1970); Bavel v.
Cavaness, 12 Ill. App.3d 633, 299 N.E.2d 435 (1973).
The defendants Patricia Anderson and Francis J. Phelan are not
presently representatives of the estate of Frank A. Anderson.
Since this action was not pending prior to the death of Frank A.
Anderson the defendants cannot be appointed as Special
Administrators of the Estate of Frank A. Anderson pursuant to
Chapter 110, Section 54(2) of the Illinois Revised Statutes.
Thus, this Court lacks any jurisdiction over the defendants qua
representatives of the Estate of Frank A. Anderson.
Accordingly, it is hereby ordered that the defendants' motion
to dismiss is granted and the cause is dismissed without