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Ritchey v. Maksin

OPINION FILED MAY 10, 1977.

JERRY RITCHEY, PLAINTIFF-APPELLANT,

v.

GEORGE MAKSIN, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Jackson County; the Hon. EVERETT PROSSER, Judge, presiding.

MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 8, 1977.

Plaintiff appeals from a judgment of the circuit court of Jackson County dismissing his complaint with prejudice.

The plaintiff's complaint alleged that the defendant was employed as an inspector with the Department of Agriculture and that his duties were ministerial; that in excess of his duties he negligently and/or wilfully and wantonly initiated criminal charges against the plaintiff and publicly accused the plaintiff of being an adulterator and mishandler of feed products.

The defendant who was represented by the Attorney General's office filed a motion to dismiss the complaint which in pertinent part reads:

"4. The complaint herein clearly shows the sole and only reason that this defendant was made a party in this action is that he exercised authority and discharged duties of the State agency in connection with the subject matter of said complaint.

5. Plaintiff is in fact suing an agency of the State of Illinois in contravention of P.A. 77-1776, Ill. Rev. Stats., 1973, ch. 127, par. 801, which provides:

`Except as provided in "AN ACT to create the Court of Claims, to prescribe its powers and duties and to repeal AN ACT herein named", filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any court.'

This action can not, therefore, be maintained in the Circuit Court."

The trial court in dismissing plaintiff's complaint with prejudice held that plaintiff's suit should have been filed in the Court of Claims:

"It is the opinion of the court that the motion of the defendant based upon limitations of Chapter 127, paragraph 801, is well founded and that the principle complaint is a suit against an individual for governmental acts and that the defendant is immune from this suit and that this court does not have jurisdiction in this matter and that the same should be filed in the Court of Claims in the State of Illinois.

THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the complaint be dismissed with prejudice."

The sole question before this court, then, is whether plaintiff was, in fact, suing the State of Illinois in contravention of Ill. Rev. Stat. 1975, ch. 127, par. 801. We emphasize that in considering this case we are not concerned with the question of whether plaintiff's complaint states a cause of action against the defendant individually.

In G.H. Sternberg & Co. v. Bond, 30 Ill. App.3d 874, 333 N.E.2d 261, this court considered a case wherein the trial court enjoined the Director of the Department of Transportation from enforcing contract rights under a construction contract entered into between plaintiff and the State. In holding that the State was the real party in interest rather than the defendant, this court observed that it was clearly the intent of plaintiff to enjoin any and all members of State government from taking any action in the ...


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