APPEAL from the Circuit Court of Macon County; the Hon. DONALD
W. MORTHLAND, Judge, presiding.
MR. PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Is place of trial to be determined by the stopwatch and a race to the courthouse steps?
We hope not. The forum and venue for a resolution of controversies on their merits is far too serious a matter to be relegated to a lawyer's dash for the clerk's office.
In short, we reverse and remand for the trial court to exercise the discretion that it never lost.
Now to the facts. This is forum non conveniens revisited and we are back on home court.
The A.E. Staley Manufacturing Company filed a $40 million breach of contract action in Macon County, Illinois, on September 12, 1977, against Swift & Company, who had filed an action based on the same contract against Staley in Des Moines, Iowa. Both suits were filed on the same day. Swift moved to dismiss the Illinois action on the basis of the doctrine of forum non conveniens. The motion was denied, an interlocutory appeal was taken to this court, and we affirmed (with one justice dissenting). 65 Ill. App.3d 427, 382 N.E.2d 667.
Upon remand, Swift again moved to have the complaint dismissed, but this time relied on section 48(1)(c) of our Civil Practice Act. (Ill. Rev. Stat. 1977, ch. 110, par. 48(1)(c).) A memorandum, depositions, affidavits, and a certified copy of Swift's Iowa petition were filed in conjunction with this motion. Additionally, Swift raised the section 48(1)(c) defense in its answer. The trial court for reasons to be explained later granted the motion and this appeal followed.
Swift's purpose in filing the depositions and affidavits was to attempt to show that the Iowa action preceded the Illinois action, although both were filed the same day. No question arises as to the exact time that Swift filed its petition in Iowa. Apparently in that State, unlike Illinois, all pleadings are required to be time-stamped at the time of filing. In this case, the time stamp showed that Swift filed the petition against Staley at 2:49 p.m.
Ascertaining the exact time when Staley's complaint was filed in Macon County, Illinois, was not so straightforward.
The discovery deposition of a Staley employee who was present when the Illinois complaint was filed indicates that filing occurred between 3:30 and 4 p.m. Affidavits of two individuals who had filed complaints in Macon County on September 12, 1977, were also presented to the trial court. The person who filed a complaint in one case stated that she normally filed documents after 3 p.m. and that to the best of her knowledge she did the same thing on September 12. The complaint in another case was filed by an individual who customarily filed her documents after 3:30 p.m. Both of these complaints were filed prior to the time that Staley filed its complaint against Swift.
On the basis of this evidence, the trial court found the Iowa action preceded the Illinois action by 41 to 71 minutes. That finding is not challenged in this appeal.
The trial court then concluded that the parties and cause were the same. Since the Iowa action preceded the Illinois action, the court felt it had no discretion as to the action it could take. The court directed that an order be prepared which granted Swift's motion based upon the court's findings and conclusion as to the amount of discretion available. An order dismissing the complaint without prejudice was entered March 22, 1979.
The question presented to us is simply whether the trial court possessed the discretion it felt was lacking. We conclude that it did.
Swift contends the Illinois rule is that where two actions pend between the same parties and for the same cause, the defendant in the later filed action has a right to have the complaint dismissed. It is argued that the language of the statute and of Illinois cases clearly leads to this conclusion. Since Swift's Iowa action preceded Staley's Illinois action ...