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Winston v. Mitchell

OPINION FILED SEPTEMBER 2, 1977.

PAUL A. WINSTON, PLAINTIFF-APPELLEE,

v.

PAUL MITCHELL ET AL., DEFENDANTS. — (WALTER MINOR, DEFENDANT AND COUNTERPLAINTIFF-APPELLEE; THE TOWNSHIP OF RICHMOND ET AL., DEFENDANTS AND COUNTERDEFENDANTS-APPELLANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. NICHOLAS J. BUA, Judge, presiding. MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

This is an interlocutory appeal pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1975, ch. 110A, par. 308) from an order of the Circuit Court of Cook County denying two motions for a change of venue and identifying the following questions of law for our review:

(1) Where a county is sued in an action with multiple defendants and the action is brought other than in the county sued, must the county's motion for a change of venue to a court of general jurisdiction in that county pursuant to the specific provisions of section 31 of "An Act to revise the law in relation to counties" (hereinafter the Counties Act) (Ill. Rev. Stat. 1975, ch. 34, par. 601) and section 7 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 7) be granted; or may this motion be denied pursuant to the provisions of the general venue statute, section 5 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 5) which permits venue in the county of any defendant joined in good faith?

(2) Where a township is sued in an action with multiple defendants and the action is brought other than in the county where the township is located, must the township's motion for a change of venue to the county of its principal office pursuant to the specific provisions of section 7 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 7) be granted; or may this motion be denied pursuant to the provisions of the general venue statute, section 5 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 5), which permits venue in the county of any defendant joined in good faith?

We reverse.

The questions identified for our review arose under the following circumstances. On June 22, 1975, plaintiff, a resident of McHenry County, was a passenger in an automobile being driven by Paul Mitchell, who was also a resident of McHenry County. The vehicle collided with an automobile being driven by Walter Minor, a Cook County resident, at an intersection within the geographic limits of Richmond Township. Richmond Township is located and has its principal office in McHenry County. Subsequently plaintiff brought an action in Cook County seeking damages from Paul Mitchell, Walter Minor, the Township of Richmond and the County of McHenry for personal injuries sustained in the accident. The negligence theory advanced against defendant Richmond Township and defendant McHenry County in this action was their failure to post intersection warning signs and permitting a stop sign to be obstructed by foliage. Defendant Minor's residence formed the basis for venue being laid in Cook County. Thereafter Richmond Township moved for a transfer of venue to McHenry County under section 7(1) of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 7(1)), and McHenry County filed a motion under both section 7(1) of the Civil Practice Act and section 31 of the Counties Act (Ill. Rev. Stat. 1975, ch. 34, par. 601) requesting the same change of venue. These motions were denied on the bases that: (1) defendant Minor was joined in good faith; and (2) venue was properly laid under section 5 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 5). Richmond Township and McHenry County then filed an application for leave to appeal pursuant to Supreme Court Rule 308 from the interlocutory order denying their motions for a change of venue from Cook County to McHenry County and identifying the aforementioned questions of law.

We agreed with the court below that there was a substantial basis for a difference of opinion over these questions and that an immediate appeal from the order could materially advance the ultimate determination of the litigation. Consequently we granted leave to appeal.

OPINION

I

• 1 With reference to the second question identified for our review, Richmond Township argues: (1) that the first sentence of section 7(1) of the Civil Practice Act grants it the privilege of having venue fixed in McHenry County since its principal office is located in McHenry County; (2) that this section should be given application in the instant action because its language makes application mandatory; and (3) that this section should be given application instead of the first paragraph of section 5 of the Civil Practice Act because (a) it is more specific than that paragraph of section 5, and (b) that paragraph of section 5 defers to the more specific first sentence of section 7(1) by virtue of the paragraph's introductory phrase: "Except as otherwise provided in this Act * * *." Therefore, concludes Richmond Township, the court below erred in denying its motion to transfer venue to McHenry County.

The first paragraph of section 5 of the Civil Practice Act provides:

"Except as otherwise provided in this Act, every action must be commenced (a) in the county of residence of any defendant who is joined in good faith and with probable cause for the purpose of obtaining a judgment against him and not solely for the purpose of fixing venue in that county, or (b) in the county in which the transaction or some part thereof occurred out of which the cause of action arose." (Ill. Rev. Stat. 1975, ch. 110, par. 5.)

The first sentence of section 7(1) of the Civil Practice Act provides:

"Actions must be brought against a public, municipal, governmental or quasi-municipal corporation in the county in which its principal office is located." Ill. Rev. Stat. 1975, ch. 110, par. 7(1).

The language employed in these provisions is clear and unambiguous. We agree with defendant that the quoted portion of section 7(1) should be given application in the instant action over the quoted portion of section 5 because the language of the former is mandatory in nature, the first sentence of section 7(1) is more specific than the first paragraph of section 5 and this paragraph of section 5 defers to the more specific first sentence of section 7(1) by virtue of the paragraph's ...


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