APPEAL from the Circuit Court of Du Page County; the Hon. JOHN
S. TESCHNER, Judge, presiding.
MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Daniel F. Rice, Jr. (Rice), filed a document, entitled a "Claim," in the probate proceedings pending in the estate of Ada Rice, deceased, in Du Page County. (For other aspects of litigation in the Rice estates see In re Estates of Rice (1979), 77 Ill. App.3d 641.) In the body of the document Rice sought an amount sufficient to satisfy any judgment which might be recovered under a complaint filed simultaneously in the Federal District Court "for damages for wrongfully and unduly influencing Daniel F. Rice to virtually disinherit claimant and for conspiring to prevent claimant from contesting the will of his father," as set forth in the complaint attached. Ultimately the trial court set the matter for trial and ordered depositions taken, over Rice's objection; and upon Rice's failure to appear for the deposition, dismissed the proceedings with prejudice.
The document in question was filed on November 2, 1977. Following the resolution of the earlier appeal the trial court set April 24, 1980, as a hearing date. Rice objected to the setting of the date on the ground that his claim was contingent upon the outcome of his Federal suit.
On March 20, 1980, attorneys for the appellees, executors of the estate, presented a motion to compel Rice's attendance at a deposition in Illinois. At that time Rice did not deny he was subject to having his deposition taken but maintained it should be taken in the State of California where he was then a resident. The court ordered him to submit to a deposition in California, further stating in the order: "Failure to do so will be basis for denying his claim against this estate."
On March 28, 1980, the executors sought a date certain for the deposition on the ground that Rice was not cooperating. Rice argued in response that his claim was contingent and that the discovery stay ordered in Federal court precluded him from attending the deposition. He further objected to the April 24 date on the grounds that the Federal action should be tried before his contingent claim was required to be acted upon.
The court reaffirmed the April 24 hearing date and ordered the deposition for April 10, 1980. On that date the executors filed a motion to dismiss Rice's claim with prejudice, alleging that he had failed to appear for the court ordered deposition. On April 18 Rice filed a "Notice of Withdrawal of Notice of Claim."
On April 22, 1980, arguments were heard on the motion to dismiss. Rice took the position he would be in contempt of court if he attended the deposition in the face of the Federal court's stay of discovery. He also maintained that his withdrawal of the claim effectively mooted the point. The executors responded that the Federal stay order had no effect on the State proceeding and that Rice had not followed correct procedures to obtain a voluntary non-suit.
Rice in rebuttal asserted that section 52 of the Civil Practice Act, governing voluntary dismissals, did not apply to a withdrawal of a claim in probate. After further argument, the court inquired of Rice's attorney whether he was ready to proceed on April 24 and after the response that appellant was not ready the court dismissed the "claims" with prejudice.
On May 8, 1980, the appellant presented a motion to vacate the dismissal with prejudice, arguing that the sanction was not justified by Rice's conduct. The court again inquired whether the appellant was prepared to go to trial and, upon receiving a negative response, denied the motion to vacate the dismissal. Rice has appealed.
Initially, we know of no basis for Rice's claimed belief that proceeding with discovery in Du Page County would violate an order entered in the Federal District Court staying discovery and place him in contempt of court. Federal Judge Grady's order explicitly stated: "I do not control discovery in the State case."
Rice principally contends that his filing was actually a notice of a possible future claim which was contingent and that therefore nothing was presented to the court to rule upon. He alternatively argues that his withdrawal of the document amounted to a voluntary dismissal pursuant to section 52 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 52); and that, in any event, the trial court abused its discretion in imposing the extreme sanction of dismissal for failure to appear at a deposition.
• 1 We conclude that the trial court had the authority to adjudicate the matter presented to it by the filing of the document in the form of a claim in the probate court. Rice's argument that the probate court has no authority to rule on a contingent claim is misapplied. A contingent claim is defined as one in which liability is dependent upon a future event, the happening of which is not within the control of either party and which might or might not happen. (Sanders v. Merchants State Bank (1932), 349 Ill. 547, 568.) Here, of course, the basis for liability against the estate which Rice asserts is predicated on events which occurred before the death of Ada L. Rice. The fact that the liability under the claims depends on future adjudication on the merits obviously cannot deprive the court of authority to hear the matter, as this may be true in every claim presented to the probate court. The Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 18-1) specifically provides that a claim against the estate of a decedent "whether based on contract, tort or otherwise" may be filed in the proceeding for the administration of the estate. Moreoever, section 18-4 of the Act permits both the filing and adjudication of a claim "that is not due." (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 18-4.) A division of the circuit court in probate may entertain a tort claim not yet adjudicated (Berke v. First National Bank & Trust Co. (1979), 77 Ill.2d 452, 457-58), or an unadjudicated claim based on contract. In re Estate of Likes (1972), 6 Ill. App.3d 976, 978.
Further, the trial court was not obligated to treat the document filed in the probate proceedings as a mere notice of action pending in the Federal courts>. There is no statute or court rule recognizing the filing of such notice. There is dicta in Berke which suggests that a claimant may file a notice in the probate proceedings "stating the claim was pending in the Federal district court." (77 Ill.2d 452, 455.) The court, however, indicated it would have given the executor no information it did not already have when it was served with summons in the Federal suit during the period for filing claims. The actual holding in Berke was that the pendency of a complaint against an executor in Federal court excused compliance with the six months limitation period on filing claims contained in section 18-12 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 18-12); and that the mere pendency of the Federal suit preserved a claimant's right to share in the distribution of the assets of an estate if ultimately successful. 77 Ill.2d 452, 458.
Berke, however, did not address the question whether the State court must allow the Federal court to adjudicate the claim against the assets of the estate pending in the State court. This question appears to be at the heart of the dispute in this case, ...