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Nicholas v. Inglimo

OPINION FILED MAY 29, 1981.

GEORGE F. NICHOLAS, JR., ET AL., PLAINTIFFS-APPELLEES,

v.

CHARLES R. INGLIMO, DEFENDANT-APPELLANT. — (ALLEN TUREK ET AL., DEFENDANTS.)



APPEAL from the Circuit Court of Du Page County; the Hon. CARL F.J. HENNINGER, Judge, presiding.

MR. JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

On May 7, 1980, plaintiffs George F. Nicholas, Jr., and George F. Nicholas, Sr., filed a complaint in the circuit court of Du Page County, naming Charles R. Inglimo, Allen Turek (individually and as parent and guardian of Timothy Turek, a minor) and Timothy Turek as defendants. The complaint alleged, inter alia, that on or about September 21, 1974, at a cabin located in the area of Camp Douglas, Wisconsin, defendant Charles Inglimo negligently permitted a loaded pistol, which he owned, to remain in an exposed position, such that it could easily be uncovered by Timothy Turek, a minor; that defendant Timothy Turek caused the pistol to discharge; and that, as a result, plaintiff George F. Nicholas, Jr., suffered severe and permanent injuries from a gunshot wound in the chest. Plaintiffs requested judgment in excess of $15,000.

Summons issued and defendant Charles Inglimo was personally served in Superior, Wisconsin, on May 12, 1980. On June 11, 1980, Inglimo filed a special and limited appearance and a motion to quash the service of summons, contending that the circuit court of Illinois lacked personal jurisdiction over him. The trial court initially granted the motion to quash service. However, plaintiffs filed a motion to vacate the order and, on July 24, 1980, the trial court vacated its prior order, denied the motion to quash service and ordered defendant Inglimo to answer or otherwise plead within 30 days. On September 3, 1980, Inglimo requested a rehearing, and filed an affidavit which recited that he had moved to Superior, Wisconsin, in December 1978, intending it to be his lawful residence; that he has resided continuously in Superior, Wisconsin, from December 1978 to the present; that at the time of service of process in the instant case, his residency and citizenship were in Superior, Wisconsin; that his citizenship is of the State of Wisconsin; and that he is not a citizen or resident of the State of Illinois.

The trial court denied the motion for rehearing on September 11, 1980. In its order, the trial court found that there was "a question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from said Order may materially advance the ultimate termination of the litigation. That question is: `whether an Illinois Circuit Court has in personam jurisdiction over a person who is a non-resident at the time suit is filed and when out-of-state of [sic] service is effected, but who was an Illinois resident at the time the cause of action arose in another jurisdiction and remained an Illinois resident for several years thereafter.'"

On September 25, 1980, defendant Inglimo filed his application for leave to appeal pursuant to Illinois Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308). This court granted the application on October 14, 1980, and defendant thereafter filed his notice of appeal. Although plaintiffs filed a response to the application for leave to appeal, they have not filed a brief in this court. Nevertheless, since the record is simple and since the claimed error can be resolved without the aid of an appellee's brief, we shall decide the merits of the appeal. See First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 133, 345 N.E.2d 493, 495.

• 1 "While the State presumably has jurisdiction over its residents, this is not true of nonresidents. It is only in certain instances that our courts> may reach out and touch citizens of other states and these occasions are enumerated by statute." (Wells v. Braxton (1967), 82 Ill. App.2d 354, 362, 227 N.E.2d 137.) Section 16 of the Illinois Civil Practice Act provides in pertinent part:

"(1) Personal service of summons may be made upon any party outside the State. If upon a citizen or resident of this State or upon a person who has submitted to the jurisdiction of the courts> of this State, it shall have the force and effect of personal service of summons within this State; otherwise it shall have the force and effect of service by publication." (Ill. Rev. Stat. 1979, ch. 110, par. 16(1).)

A person submits to the jurisdiction of the courts> of this State if he or she does any act enumerated in section 17 of the Civil Practice Act. That section provides in pertinent 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, and, if an individual, his personal representative, to the jurisdiction of the courts> of this State as to any cause of action arising from the doing of any of such acts:

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

(b) The commission of a tortious act within this State;

(c) The ownership, use, or possession of any real estate situated in this State;

(d) Contracting to insure any person, property or risk located within this State at the time of contracting;

(e) With respect to actions of dissolution of marriage and legal separation, the maintenance in this ...


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