Appeal from the Circuit Court of Cook County; the Hon. Charles
E. Freeman, Judge, presiding.
JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Plaintiff filed an action in the circuit court seeking review of a ruling made by the defendant, the Illinois Commerce Commission (ICC). Another party, the Terminal Railroad Association (TRRA), moved for a change of venue to Sangamon County. The trial court granted TRRA's motion, and the ICC now appeals.
Plaintiff, a company located in St. Clair County, Illinois, complained to the ICC about an increase in railroad switching rates imposed by TRRA. TRRA is an association whose offices are in Madison County, Illinois. In Sangamon County, Illinois, the ICC heard testimony on plaintiff's complaint, and on November 5, 1985, issued an order dismissing an investigation into the reasonableness of the switching rates.
Pursuant to section 18c-2201 of the Illinois Commercial Transportation Law (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 18c-2201, et. seq.), the plaintiff filed a complaint in the circuit court of Cook County seeking judicial review of the decision of the ICC. In the caption of its complaint, the plaintiff failed to name TRRA as a defendant, although plaintiff served TRRA with a summons and a copy of the complaint.
On February 25, 1986, TRRA filed a motion to transfer venue from Cook to Sangamon County. According to the Illinois Commercial Transportation Law (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 18c-2401), venue was proper in both counties, but TRRA argued that Sangamon County was a more convenient site. The trial judge in Cook County granted TRRA's motion to transfer.
On April 10, 1986, the trial court denied the ICC's petition for reconsideration, and this court granted leave to appeal.
On appeal, the ICC argues that the trial court abused its discretion when it granted TRRA's motion for change of venue. According to the ICC, the trial court's decision was improper because TRRA was not a party to this action and thus had no standing to bring a motion.
• 1 It is true, as the ICC observes, that plaintiff failed to name TRRA as a defendant in its complaint. Furthermore, TRRA is an indispensable party to plaintiff's claim since all parties of record in proceedings before an administrative agency must be made defendants in an appeal to the circuit court. Ill. Rev. Stat. 1985, ch. 110, par. 3-107 (made applicable to the Illinois Commercial Transportation Law through section 18c-2206 (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 18c-2206)); see also Massoud v. Board of Education (1981), 97 Ill. App.3d 65, 70, 422 N.E.2d 236.
• 2 Plaintiff argues that the ICC has waived its right to object to TRRA's standing to make a motion in this cause. According to the plaintiff, the ICC first raised this objection in its petition for reconsideration, a document filed after the trial court had already ruled on TRRA's motion for change of venue.
Regardless of when it raised its objection, the ICC has not waived its right to argue that TRRA lacked standing to request a change of venue. The Administrative Review Law makes TRRA an indispensable party to these proceedings. (Ill. Rev. Stat. 1985, ch. 110, par. 3-107.) Where a statute makes a person an indispensable party to the review of an administrative action, another party's failure to object to the absence of such person does not operate as a waiver of the statutory requirement, nor does it relieve plaintiff of his duty to join all parties of record to the proceedings below. In fact, failure to join a necessary party may be a fatal defect requiring dismissal of the plaintiff's complaint. See Cuny v. Annunzio (1952), 411 Ill. 613, 617, 104 N.E.2d 780; O'Hare International Bank v. Zoning Board of Appeals (1972), 8 Ill. App.3d 764, 767, 291 N.E.2d 349.
Despite these considerations, the present situation is not one that warrants dismissal of plaintiff's claim, nor can it be said that TRRA lacked standing to object to venue. In all respects, TRRA was treated as a defendant in this cause. TRRA was served with a summons, it filed an appearance, and it was properly notified of all proceedings and motions. The only way in which TRRA was omitted is that its name was left off of the caption of plaintiff's complaint.
Since TRRA was a de facto defendant, plaintiff's complaint can simply be altered so that the caption includes TRRA. At any time before final judgment, amendments may be allowed on just and reasonable terms introducing any party who should have been joined as a plaintiff or defendant. (Ill. Rev. Stat. 1985, ch. 110, par. 2-616(a).) In its response to the ICC's petition for reconsideration, plaintiff said that it had a motion pending before the trial court asking leave to amend the complaint to include TRRA as a defendant. The trial court may consider this motion, but TRRA shall be treated as a defendant for the purpose of review of this case.
• 3 Another issue raised by the ICC is whether a complaint seeking review of an administrative decision can be transferred from one county to another on the basis of forum non conveniens. The ICC argues that the doctrine of forum non conveniens applies only at the trial level and not to proceedings in an appellate posture, as the case is here.
This argument has merit. In Torres v. Walsh (1983), 98 Ill.2d 338, 456 N.E.2d 601, our supreme court determined that a trial court could order the intrastate transfer of a cause on the basis of forum non conveniens. The Torres court saw no reason to forbid the intrastate transfer of cases in situations where transfer between States would have been allowed. In recognizing the authority of a court to dismiss a cause when a more appropriate Illinois forum was available, the Torres court hoped "to promote fair play between plaintiffs and defendants and discourage ...