APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
J. O'BRIEN, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
The Illinois Department of Public Aid, plaintiff in this cause, appeals from the trial court's dismissal of its complaint under section 48(1)(c) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(1)(c)). The trial court based its dismissal on the presumption that section 48(1)(c) mandated an automatic dismissal of the later filed action when two actions are pending on the same facts.
From this dismissal plaintiff appeals, presenting the following issues for review: (1) whether the State of Illinois and individual State officers and employees are the "same parties" under section 48(1)(c) of the Civil Practice Act; (2) whether the trial court properly granted defendants' motions to dismiss on the grounds that it lacked discretion to do otherwise; (3) whether section 48(1)(c) of the Civil Practice Act grants a defendant an automatic right of dismissal under its provisions, and whether a time priority rule is incorporated therein; and (4) whether due to Illinois' substantial and legitimate interest in the litigation, its inability to bring this action as a counterclaim in the Federal action and valid consideration of the State's sovereign immunity, the trial court should have exercised its discretion and allowed the action to proceed. We affirm.
The litigation between these parties began on September 11, 1979, when Mentalio Taylor, Edna Dodge, and Leida Santos (Federal plaintiffs), all recipients of public assistance, filed a class action lawsuit in the United States District Court for the Northern District of Illinois. Their suit challenges the procedures employed to secure promissory notes from public aid recipients by the collection division of the Illinois Department of Public Aid (IDPA). The promissory notes obligate the recipients to repay alleged overpayments of assistance. The Federal plaintiffs allege that the IDPA has violated and continues to violate various provisions of the Social Security Act, implementing Federal regulations and the United States Constitution, by requiring recipients to execute promissory notes without any notice as to the basis for the IDPA's overpayment claim, without any opportunity to contest the claim, and without regard for the substantive limits Federal law places on the recovery of overpayments from current assistance grants where the recipient is not at fault. In that suit, the Federal plaintiffs are seeking injunctive relief.
On October 4, 1979, the IDPA was served with the Federal complaint. On October 24, 1979, the IDPA sued each of the Federal plaintiffs in the circuit court of Cook County for breach of the promissory notes which are the subject of the Federal proceedings. In each of the complaints the IDPA contended that the respective defendant was a recipient of public assistance and had received excess public assistance. Further, each defendant had agreed to repay the excess assistance and had signed a promissory note to that effect. In return, the IDPA agreed to refrain from filing an action at law to recover the excess assistance. Finally, each defendant had refused to tender payment according to the terms of the agreement.
On December 3, 1979, the IDPA filed a motion for summary judgment in each of the cases. Each defendant objected to the motion and filed a motion to dismiss pursuant to section 48(1)(c) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(1)(c)) on the basis that each of the defendants had filed a Federal lawsuit on September 11, 1979, involving the promissory notes at issue herein. Also, defendants claimed that the State court actions on the promissory notes were compulsory counterclaims to the Federal action. On March 14, 1980, the trial court entered an order consolidating all three cases. On June 25, 1980, the trial court granted defendants' motion to dismiss. Plaintiff appeals from that order of dismissal.
The instant controversy involves the construction to be given to section 48(1)(c) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(1)(c)). It provides, in part, as follows:
"(1) 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:
(c) That there is another action pending between the same parties for the same cause."
Plaintiff contends that the Federal defendants Jeffrey Miller and Alice Cooperman in Taylor v. Miller, 79 C 3767, are not the same parties as the Department of Public Aid in this forum. Consequently, the requirement of section 48(1)(c) that the "same parties" be involved is not met.
"In statutory construction, it is a rule * * * that where the same, or substantially the same, words or phrases appear in different sections of a statute, they will be given a generally accepted and consistent meaning where legislative intent is not clearly expressed to the contrary. [Citations.] Therefore, a word that appears more than once in a statute is presumed to have been used by the legislature with the same meaning each time, absent an indication that a different meaning was intended. [Citations.] This being so, the word `same' as it modifies `parties' in the first part of section 48(1)(c) must be given the same meaning it has when it modifies `cause.' We conclude that in the section in question, `same parties' means that in consecutive suits, the litigants are substantially the same, not identical." Baker v. Salomon (1975), 31 Ill. App.3d 278, 281-82, 334 N.E.2d 313, 316.
In Roeskie v. First National Bank of Lake Forest (1980), 90 Ill. App.3d 669, 673, 413 N.E.2d 476, 479, citing Skolnick v. Martin (1964), 32 Ill.2d 55, 59-60, 203 N.E.2d 428, 429, and Baker, at 282, the court said:
"Section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(1)(c)) provides as a ground for dismissal `that there is another action pending between the same parties for the same cause.' The words `same cause' and `same parties' have been construed to mean substantially the same, but not identical. Actions are for the `same cause' when in both cases the relief requested is on substantially the same set of facts."
• 1 With the above meaning in mind, we find that the same parties and the same cause of action are involved in the Federal ...