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05/10/88 Bridget Colletti, As Adm'x v. Dele

May 10, 1988

COLLETTI, DECEASED, ET AL., PLAINTIFFS-APPELLANTS

v.

VITO CRUDELE, AS ADM'R OF THE ESTATE OF NICHOLAS CRUDELE, DECEASED, ET AL., DEFENDANTS (BYNUM TRANSPORT, INC., APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

BRIDGET COLLETTI, as Adm'x of the Estate of Bernard

523 N.E.2d 1222, 169 Ill. App. 3d 1068, 120 Ill. Dec. 311 1988.IL.716

Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.

APPELLATE Judges:

JUSTICE STAMOS* delivered the opinion of the court. HARTMAN, P.J., and BILANDIC, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

Pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), plaintiffs appeal from an order of the circuit court of Cook County granting the motion of defendant Bynum Transport, Inc. (Bynum), a Florida corporation, to quash service of summons. The order was based on the court's determination that Bynum was not doing business in Illinois for purposes of subjecting it to jurisdiction here.

The underlying wrongful-death action involves an accident in Kentucky, where an automobile in which plaintiffs' decedent was a passenger is alleged to have collided with a truck owned by Bynum. Plaintiffs' decedent is alleged to have been an Illinois resident, and plaintiffs are also presumably all Illinois residents. *fn1

Plaintiffs' notice of appeal also purports to appeal from the separate order in which the trial court found, pursuant to Supreme Court Rule 304(a), that there is no just cause for delaying enforcement or appeal of its order quashing service of summons. However, the Rule 304(a) finding is the jurisdictional basis of plaintiffs' appeal; notices of appeal are to be liberally construed (Baird & Warner, Inc. v. Gary-Wheaton Bank (1984), 122 Ill. App. 3d 136, 140, 460 N.E.2d 840, 843), and errors that are merely matters of form will not prevent the appellate court's jurisdiction from attaching (Dillman & Associates, Inc. v. Capitol Leasing Co. (1982), 110 Ill. App. 3d 335, 339, 442 N.E.2d 311, 315). Therefore, we treat this part of the notice of appeal as having been filed in error., Plaintiffs contend that in the present action Bynum is subject to the trial court's jurisdiction on three grounds:

(a) That Bynum consented to jurisdiction over it in the present action by entering its general appearance in three other lawsuits filed against it in Illinois arising from the same accident.

(b) That Bynum waived its jurisdictional objection by failing to object to consolidation of the present lawsuit with the other three in which it had filed general appearances.

(c) That Bynum was doing business in this State so as to subject itself to the jurisdiction and laws of Illinois.

We are not persuaded by plaintiffs' first two contentions but, in the limited circumstances of this case, agree with their third. Accordingly, we reverse and remand.

Facts

Plaintiffs' complaint and brief allege as follows: On April 3, 1985, plaintiffs' decedent Bernard Colletti was a passenger with two other men, Philip Marrera and Frank Perri, in a car driven by Nicholas Crudele and was killed when the car collided with a truck owned by Bynum and then with another truck. The collision occurred near Richmond, Kentucky. Bernard Colletti and Nicholas Crudele were Illinois residents. The collision occurred as a result of the negligence of Bynum, its employee driver, and the owner and driver of another truck in parking their vehicles alongside the interstate highway.

According to an affidavit of Bynum's president, the Bynum truck involved in the collision was en route from Akron, Ohio, to Highland City, Florida, and had no contact with Illinois while on the trip. The affidavit ...


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