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Horn v. Rincker

OPINION FILED FEBRUARY 20, 1981.

CHESTER HORN ET AL., PETITIONERS,

v.

GAIL RINCKER ET AL., RESPONDENTS.



Original petition for mandamus. MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 27, 1981.

The petitioners, Chester Horn and Rita Horn, were granted leave to file an original petition in this court requesting it to exercise its general administrative and supervisory authority and also praying for a writ of prohibition and for a writ of mandamus. Petitioners are defendants in three separate actions filed in Shelby, St. Clair, and Madison counties. Those actions, described in more detail below, seek relief for personal injuries and death resulting from a collision in Shelby County. Various motions in the several causes to transfer venue or consolidate these cases having been denied, petitioners filed their original petition in this court. Named as respondents are all the parties, both plaintiffs and defendants, involved in the three actions, with the exception of the corporate defendants joined in various products liability counts. Judge Thomas P. O'Donnell, circuit judge of St. Clair County, Judge Joseph J. Barr, circuit judge of Madison County, and Judge Vernon L. Plummer II, circuit judge of Shelby County, were also named as respondents herein. Basically, the petitioners seek an order from this court transferring the cases pending in St. Clair and Madison counties to Shelby County and consolidating all those cases with the Shelby County case.

On November 19, 1976, Earl Bass was operating a motor vehicle along a road approximately one mile southwest of the town of Cowden, in Shelby County. He was accompanied by a passenger, Crystal Rose Robertson. While proceeding in a northerly direction, the Bass vehicle sideswiped a disabled farm wagon standing on the east side of the road. The wagon was owned by Chester and Rita Horn, and contained corn owned by them, as well as by Tennessee Sollis. At the time of the accident, the corn was being hauled to a grain elevator. After this first collision the Bass vehicle crossed the center of the road and collided with a southbound vehicle being driven by Dale Rincker, who was also accompanied by a passenger, Gail Rincker. Bass and his passenger, Robertson, died as a result of injuries received in the accident.

On March 10, 1978, the Rinckers filed the first lawsuit arising out of this accident in the circuit court of Shelby County. That suit named as defendants Chester Horn; Rita Horn; the administrator of the Bass estate; and Tennessee Sollis. The administrator of the Bass estate then filed an action in the circuit court of St. Clair County on March 16, 1978, naming as defendants Chester Horn; White Farm Equipment Company; Sears, Roebuck and Company; and Electric Wheel Company. The actions against these three corporate defendants are based on the theory of products liability, the three corporate defendants being in the chain of manufacture and distribution of the farm wagon and its component parts. The administrator of the Robertson estate then filed suit on July 13, 1978, in the circuit court of Madison County. That action named as defendants Chester Horn; Dale Rincker; the administrator of the Bass estate; White Farm Equipment Company; and Sears, Roebuck and Company. Finally, the Rinckers filed a separate cause of action in Shelby County on November 16, 1978, naming as defendants White Farm Equipment Company; Sears, Roebuck and Company; and Electric Wheel Company. This last action, based upon a products liability theory, was consolidated with the first suit previously filed by the Rinckers.

At the time of the accident, Earl Bass, Lynette Anne Bass, administrator of the estate of Earl Bass, Chester Horn, Rita Horn, Dale Rincker, Gail Rincker, Crystal Rose Robertson, Kenneth Eugene Robertson, administrator of the estate of Crystal Rose Robertson, and Tennessee Sollis were all residents of Shelby County, and all of these parties now living still reside in Shelby County except Lynette Anne Bass, administrator of the estate of Earl Bass, who moved to St. Clair County before her suit was filed in that county. The three corporate defendants are residents of all three counties in that they are "doing business" in those counties. (See Ill. Rev. Stat. 1977, ch. 110, par. 6.) All of the pre-occurrence witnesses and post-occurrence witnesses, and all of the authorities who investigated the accident, reside in Shelby County.

Discovery depositions of the Horns were taken by the attorney for the plaintiffs Rincker in the Shelby County case on July 7, 1978. On April 23, 1979, Chester Horn was served with a notice to take a discovery deposition in the St. Clair County case. On March 8, 1978, the attorney for the defendants Rincker in the Madison County case filed a notice to take evidentiary depositions of three witnesses who resided in Shelby County. The attorney for the Horns decided to take discovery depositions of the same three witnesses. It was necessary to obtain a court order to continue the evidentiary deposition of these witnesses until after the discovery depositions were taken. The discovery depositions of these three witnesses were taken, and later evidence depositions of two of the same witnesses were taken. Thereafter, notices were served to take the evidence depositions of these same witnesses by the attorney for the plaintiff in the St. Clair County case. There are several other witnesses who will be subject to both discovery and evidence depositions in each of the three counties.

The petitioners (Horns) filed a motion in Shelby County to consolidate the pending cases and filed motions in St. Clair County and Madison County to transfer venue in those cases to Shelby County. The motions were denied by each court in its respective case. It is approximately 100 miles from Shelby County to both Madison and St. Clair counties. In addition to the hardship entailed in the taking of multiple depositions of each witness because of the three separate cases in three separate counties, it is also argued that, should the three cases go to trial separately, there will be a considerable waste of time and inconvenience caused by the traveling of the witnesses to the different courts>, and it is argued there would be a generally unsatisfactory presentation should it be necessary to use the evidence depositions instead of having the witnesses testify personally. It is also argued that by trying the three cases separately, inconsistent verdicts may result.

It appears from the allegations of the petition and the answers filed by respondents that the ruling of each court below with regard to transferring venue to Shelby County was correct. The petitioners sought to "transfer venue" in the St. Clair and Madison County cases by motions made long after their answer had been filed in each case. The motions were therefore untimely, and any objection to improper venue was waived. (Ill. Rev. Stat. 1977, ch. 110, par. 8(2); United Biscuit Co. v. Voss Truck Lines, Inc. (1950), 407 Ill. 488, 501.) In fact, there appears to be no basis for such a motion, however timely, since venue was proper in both the Madison and St. Clair County actions. There are no allegations that the corporate defendants were joined in bad faith for the purpose of fixing venue in those counties. Our venue statute 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.

If all defendants are nonresidents of the State, an action may be commenced in any county." (Ill. Rev. Stat. 1977, ch. 110, par. 5.)

For purposes of venue, a private corporation is considered to be a resident of any county in which it is "doing business." (Ill. Rev. Stat. 1977, ch. 110, par. 6.) No substantial challenge was made to the apparent fact that each corporate defendant in this case was a "resident" of each county involved.

Similarly, to the extent that these motions sought to consolidate the several actions, they were properly denied. The Civil Practice Act provides that actions pending "in the same court" may be consolidated. Section 51 of the Civil Practice Act states:

"An action may be severed, and actions pending in the same court may be consolidated, as an aid to convenience, whenever it can be done without prejudice to a substantial right. (Emphasis ...


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