APPEAL from the Circuit Court of Clinton County; the Hon.
ARTHUR G. HENKEN, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the Circuit Court of Clinton County, dismissing plaintiff-appellant's complaint for an order that the proceeds of a trust are distributable to the plaintiff.
Charles W. Parker died testate April 13, 1956, survived by his wife, Emma Parker. His will was probated in St. Louis, Missouri. The will of Charles W. Parker provided in pertinent part that the residue of his estate be devised in trust to Liberty Central Trust Company as trustee (St. Louis Union Trust Company, a Missouri corporation, defendant herein, succeeded to this position by virtue of a codicil to the will of Charles W. Parker) for the use and benefit of the life tenant, Emma Parker, Charles Parker's surviving widow. The will then provided that upon the death of Emma Parker the remainder of the trust corpus would be divided equally between the Presbyterian Church of Carlyle, Illinois, an Illinois corporation and plaintiff herein, and William H. Parker, a brother of the decedent and a defendant herein; but if William H. Parker was not living at the death of Emma Parker, then his share should vest in the plaintiff, the Presbyterian Church of Carlyle. On December 17, 1958, Emma Parker died and the trust thereby terminated and became distributable.
Upon this termination of the trust the defendant St. Louis Union Trust Company held and still holds the distributable share of the defendant William H. Parker in the amount of $8300. Subsequent to the termination of this trust, certain realty, being a part of the trust corpus, was sold by the trustee and the proceeds of the sale, in the amount of $10,900, being also a portion of the distributive share of the defendant William H. Parker, were held in escrow by St. Louis Title and Abstract Company and are now held in escrow by their successor, Guaranty Land Title Company, a Missouri Corporation, and a defendant herein. The funds held by the defendants, St. Louis Union Trust Company and Guaranty Land Title Company, are being held until a determination is made whether the defendant William H. Parker is alive or died subsequent to Emma Parker, in which event he would have died seized of his distributive share, or whether he predeceased Emma Parker, thus vesting his distributive share of the trust in the plaintiff. Plaintiff brings this suit to secure a determination that William H. Parker predeceased Emma Parker and that title to his distributive share of the trust vested in itself. Defendants-appellees prayed in their answers that the cause be dismissed either for lack of jurisdiction or under the common law doctrine of forum non conveniens. Alternatively, they prayed that plaintiff be required to prove his allegations.
Without going into the specifics of the method or the extent of the inquiry, attorney for the plaintiff stated by affidavit that, after due and diligent inquiry, he was unable to determine whether defendant William H. Parker is living or dead and that he has been unable, after due and diligent inquiry, to find William H. Parker or to ascertain his place of residence or his former place of residence. The affidavits stated that a diligent inquiry had been made to ascertain these facts, but no description of the mode or extent of such inquiry was included therein. In their respective answers defendants St. Louis Union Trust Company and Guaranty Land Title Company do not dispute plaintiff's affidavits with respect to the whereabouts of William H. Parker, but they deny any knowledge of the status of William H. Parker. Plaintiff's attorney further stated by affidavit that due and diligent inquiry has failed to disclose the names or addresses, present or former, of any of the unknown heirs or devisees of William H. Parker or of any unknown owners (parties who might conceivably have taken an interest from either William H. Parker or the unknown heirs or devisees of William H. Parker). Again, the mode and extent of such inquiry were not revealed by the affidavit. Defendants St. Louis Union Trust Company and Guaranty Land Title Company deny any knowledge of the existence, identity or whereabouts of the parties. The record fails to disclose and the respective briefs fail to discuss the last abode, residence or domicile from which William H. Parker allegedly disappeared. Neither may it be ascertained therefrom the date upon which William H. Parker allegedly disappeared.
Plaintiff filed this suit in the circuit court. Defendants, St. Louis Union Trust Company and Guaranty Land Title Company, made a general entry of appearance in that court. The defendants William H. Parker, unknown heirs and devisees of William H. Parker, and unknown owners made no appearance. These parties were served with notice by publication, complying in form with the statute (Ill. Rev. Stat., ch. 110, § 14), in a newspaper of general circulation in Breese, Clinton County.
Although no motion appears in the record, the court apparently treated the prayers of the respective answers as raising questions of law to be determined by the court, before proof was to be offered.
On January 17, 1973, having heard and considered arguments of counsel with respect to an attack on the jurisdiction of that court to hear and determine this cause, the court entered a ruling and order, dismissing the cause; however, the ruling upon which this order was issued makes less than lucid the basis for the dismissal. It is unclear whether the grounds for dismissal were lack of subject matter jurisdiction, lack of personal jurisdiction of the necessary parties, or forum non conveniens. The circuit court found that there was jurisdiction over defendants, St. Louis Union Trust Co. and Guaranty Land Title Co. The court also found that this jurisdiction was sufficient to allow the court to order these defendants to pay over the trust corpus to plaintiff. The court found that it is "doubtful that such a notice [notice by publication] can be the basis for a personal judgment against" defendants, William H. Parker and his unknown heirs or devisees. The court did not find that it lacked jurisdiction of these latter defendants and it did find it had jurisdiction to enter an order for plaintiff, which finding would necessarily require a determination of the status of defendant, William H. Parker. Therefore it is not illogical to construe this ruling as finding proper subject matter jurisdiction.
Although the court speaks in terms of a "lack of proper jurisdiction over all the necessary parties" in the order, there is no reference to necessary parties or forum non conveniens in the ruling. The court's reasoning in the ruling, that "[a] judgment of this court would be subject to attack in the State of Missouri" and that Missouri is "the only forum where the rights of all can be decided and terminated with finality", strongly indicates that the legal doctrine whose elements support the circuit court's order is that of forum non conveniens.
In brief summary, it is that court's opinion that the trial court entered its order dismissing this cause on the basis of the common law doctrine of forum non conveniens while finding, necessarily, that it had proper jurisdiction of both the cause and the parties.
The first issue to be resolved, therefore, is whether the courts' order was properly based on forum non conveniens.
The doctrine of forum non conveniens was recognized in Illinois in the case of Whitney v. Madden (1948), 400 Ill. 185, 79 N.E.2d 593. The doctrine is grounded in equity and relies on a type of balancing technique which is found in equitable decisions. In general, most courts are reluctant to dismiss for forum non conveniens unless the factors considered balance heavily in favor of the defendants. Nelson v. Miller (1957), 11 Ill.2d 378, 143 N.E.2d 673.
Of the many cases interpreting this equitable action in Illinois, very few relate to what should be contained within the defendant's motion for dismissal when based on this ground.
In the case of Fender v. St. Louis S.W.R.R.Co. (1971), 49 Ill.2d 1, 273 N.E.2d 353, a showing that the action was brought in a specific forum for the purpose of frustrating, unduly burdening, or causing a great and unnecessary inconvenience to the defendant was not required before a motion to dismiss on forum non conveniens grounds will be granted. However, this case narrowed the scope of this holding to those cases brought under the FELA.
The Fender case indicates the trend away from the rather harsh requirement set forth in dictum in the case of Continental Casualty Co. v. Hartford Accident & Indemnity Co. (1960), 28 Ill. App.2d 177, 171 N.E.2d 28. The court there criticized the motion to dismiss for not including the charge of harassment as a factor in an action to dismiss under forum non conveniens.
The Fender case also held that a proponent of such a motion is not required to support his motion with a comparative statistical analysis of calendar congestion in the original forum and in other jurisdictions if ...