Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Macon County,
the Hon. Donald W. Morthland, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 27, 1981.
This is an appeal from a decision of the circuit court of Macon County granting a motion to dismiss filed by defendant, Swift & Company, under section 48(1)(c) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48(1)(c)). The appellate court reversed and remanded, one justice dissenting. (80 Ill. App.3d 122.) We granted Swift leave to appeal.
Plaintiff, A.E. Staley Manufacturing Company, is a Delaware corporation with its principal office and place of business in Decatur, Macon County, Illinois. Defendant, Swift & Company, is also a Delaware corporation with its principal place of business in Chicago, and it conducts some business in Macon County.
On March 1, 1976, the parties entered into an agreement whereby Staley purchased from Swift, inter alia, a soybean-processing plant in Des Moines, Iowa. The plant was then under construction by Swift, and, under the terms of the agreement, construction was to be completed by Swift.
On September 12, 1977, at 2:49 p.m., Swift filed suit against Staley in the Polk County district court in Des Moines. In that suit, presently in the discovery stage, Swift seeks recovery of $4.5 million retained by Staley to secure construction of the soybean-processing plant.
Shortly thereafter, on the same day as the filing of Swift's Iowa action, Staley filed suit against Swift in Illinois in the Macon County circuit court. Staley seeks $39.8 million in damages allegedly sustained as a result of Swift's failure to fulfill its obligation of completing construction of the soybean-processing plant.
In its Iowa action, Swift has also named French Oil Mill Machinery Company as a defendant. French allegedly made certain guarantees to Swift, and Swift seeks indemnification from French for much of Staley's claim against Swift. Swift claims that it is not aware of any basis for obtaining jurisdiction over French in the Illinois courts>.
On October 3, 1977, Swift filed in the Illinois action a document captioned: "Motion To Dismiss For Forum Non Conveniens Or In The Alternative To Stay This Proceeding Pending Disposition Of A Prior Suit In Iowa Between The Parties Hereto Concerning The Same Contract Which Is The Subject Matter Of This Suit." In the body of the motion itself, Swift explains at some length that it filed its Iowa action prior to Staley's Illinois action, but it relies primarily on forum non conveniens as the basis of its motion. The circuit court denied the motion, finding that both parties have their principal offices in Illinois and that, under the terms of their agreement, Illinois law would govern interpretation of the agreement. The appellate court affirmed, citing the same factors as the circuit court, but also finding that most of the principals involved are Illinois residents, that most discoverable paper work is in Decatur or Chicago, and that the economic impact of the litigation would be greater on Illinois. (65 Ill. App.3d 427.) On March 29, 1979, this court denied a petition for leave to appeal filed by Swift. 74 Ill.2d 585.
Prior to this court's denial of Swift's petition for leave to appeal, Swift filed its second motion to dismiss in the Macon County circuit court on January 11, 1979. Relying on section 48(1)(c) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48(1)(c)), Swift claimed that it had filed its Iowa action prior to Staley's Illinois action and that dismissal of Staley's action was therefore required. Section 48(1)(c) provides:
"Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:
That there is another action pending between the same parties for the same cause."
The circuit court found that Swift had, in fact, filed its action in Iowa 41 to 71 minutes prior to Staley's filing of the Illinois action. Because of Swift's prior filing in Iowa, the circuit court felt that it was compelled to grant Swift's motion to dismiss, and it did so. On appeal by Staley, the appellate court reversed the judgment of the circuit court and remanded the cause to that court. (80 Ill. App.3d 122.) Finding that section 48(1)(c) was adopted from a New York statute and ruling that judicial construction of the New York statute accompanied Illinois' adoption of section 48(1)(c) (Hansen v. Raleigh (1945), 391 Ill. 536, 549), the appellate court held that the respective filing times of the actions should be disregarded and that section 48(1)(c) is inoperative when both actions are filed on the same day, citing Avery v. Title Guaranty & Trust Co. (1930), 230 App. Div. 519, 245 N.Y.S. 362. The appellate court held that Swift's section 48(1)(c) motion is addressed to the discretion of the trial court and that ...