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Dalton v. Blanford

OPINION FILED DECEMBER 14, 1978.

DAVID KENT DALTON, PLAINTIFF-APPELLEE,

v.

RAY C. BLANFORD ET AL., D/B/A STOUTENBOROUGH AUCTION CO., DEFENDANTS-APPELLEES. — (LOTTEO BALACO, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLEE,

v.

ROY WICKHAM, THIRD-PARTY DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Christian County; the Hon. DON E. BEANE, Judge, presiding.

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

Third-party defendant Roy Wickham appeals from an order of the circuit court of Christian County denying his motion to set aside a default judgment entered against him in the amount of $75,000.

Wickham, a resident of Oklahoma, contends that he was not subject to the jurisdiction of the courts> of Illinois. We hold against Wickham on this issue. Alternatively, Wickham contends that assuming the courts> of Illinois did have jurisdiction over him, the trial court erred in denying his motion to set aside the default judgment against him which was filed pursuant to section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 50(5). We hold in favor of him on this issue.

On June 12, 1970, plaintiff David Dalton filed suit against Ray C. Blanford, Patricia Blanford and Lotteo Balaco seeking damages for injuries received in a fall from a horse on April 25, 1969. The alleged cause of the fall was a defective saddle which Dalton had purchased at co-defendant Blanford's auction barn in Springfield, Illinois. On the day of that purchase co-defendant Balaco sold some saddles at the auction barn. These saddles were allegedly acquired by him in Oklahoma from appellant third-party defendant Wickham. On July 1, 1971, Balaco filed a third-party complaint against Wickham seeking indemnification for any judgment which might be entered against him, plus reasonable attorney's fees and court costs. On July 8, 1971, Wickham was served with a summons and a copy of the complaint at his residence in Oklahoma. Wickham did not answer the complaint nor enter his appearance, although in an affidavit later submitted to the circuit court Wickham stated he had retained the services of a law firm in Taylorville, Illinois, to represent him in this proceeding.

On December 28, 1976, a default judgment was entered against Wickham on motion of Balaco. However, at the same time permission was granted to submit an order making findings of fact. This order was not signed by the judge and filed until January 19, 1977, nunc pro tunc as of December 28, 1976. On the same day another order was signed and filed holding Wickham liable for judgment in the amount of $75,000 entered against Balaco in the suit filed by Dalton. Previously on December 28, a judgment of $75,000 and costs had been entered against the Blanfords and Balaco as co-defendants after a jury verdict in that amount.

On January 26, 1977, Wickham was sent a copy of the two orders pertaining to him. He then retained his present counsel and on February 15, 1977, filed a motion to set aside the default judgment. Plaintiff Dalton and third-party plaintiff Balaco each filed motions to strike Wickham's motion, which the trial court granted.

Did the trial court have jurisdiction of Wickham? A court's authority to exercise jurisdiction over a nonresident defendant arises from section 17 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 17) which provides in part:

"(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent, does any of the acts hereinafter enumerated, thereby submits such person * * * to the jurisdiction of the courts> of this State as to any cause of action arising from the doing of any such acts:

(a) The transaction of any business within this State;

(2) Service of process upon any person who is subject to the jurisdiction of the courts> of this State, as provided in this Section, may be made by personally serving the summons upon the defendant outside this State, as provided in this Act, with the same force and effect as though summons had been personally served within this State."

• 1-3 It has been repeatedly stated that the purpose of section 17 is to exert in personam jurisdiction over nonresidents to the extent permitted under the due process clause of the fourteenth amendment to the United States Constitution. (Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673; Koplin v. Thomas, Haab & Botts, 73 Ill. App.2d 242, 219 N.E.2d 646; O'Hare International Bank v. Hampton, 437 F.2d 1173 (7th Cir. 1971); Lima v. Disney World, Inc., 47 Ill. App.3d 658, 365 N.E.2d 89.) The cases of International Shoe Co. v. State of Washington, 326 U.S. 310, 90 L.Ed. 95, 66 S.Ct. 154, and Hanson v. Denckla, 357 U.S. 235, 2 L.Ed.2d 1283, 78 S.Ct. 235, combine to set forth the due process limitations. The basic test was enunciated in International Shoe:

"[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" (326 U.S. 310, 316, 90 L.Ed. 95, 102, 66 S.Ct. 154, 158.)

No mechanical test or rule of thumb can be used to determine whether sufficient contacts exist to allow a state to claim in personam jurisdiction over a nonresident defendant. Instead, each case must be assessed on its particular facts and circumstances. (Stansell v. International Fellowship, Inc., 22 Ill. App.3d 959, 318 N.E.2d 149, 150-51; Hutter Northern Trust v. Door County Chamber of Commerce, 403 F.2d 481, 484 (7th Cir. 1968).) "The determination must be made according to what is fair and reasonable in the particular situation before the court." Lima v. Disney World, Inc., 47 Ill. App.3d 658, 660.

• 4, 5 One factor is "whether defendant engaged in some act or conduct by which he may be said to have invoked the benefits and protections of the law of the forum." (Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 440, 176 N.E.2d 761; see also Koplin v. Thomas, Haab & Botts, 73 Ill. App.2d 242, 219 N.E.2d 646; Lima v. Disney World, Inc., 47 Ill. App.3d 658, 365 N.E.2d 89.) Engaging in commercial activities within the state has been held to be such an act. (Gray v. American Radiator & Standard Sanitary Corp.; Bolf v. Wise, 119 Ill. App.2d 203, 255 N.E.2d 511.) Persons conducting commercial activities outside the state have been held to have invoked the benefits of the Illinois law even though the execution of the contract formally occurred outside of Illinois' borders, was not to be performed in Illinois, and was to ...


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