
    Elvis Wolf, Marcella Wolf, and State Farm Mutual Automobile Insurance Company, Plaintiffs-Appellants, v. Bjarne Solem and Sophia Solem, Defendants-Appellees.
    Gen. No. 11,314.
    Second District, First Division.
    June 9, 1960.
    Sears, Streit, and Tyler, of Aurora, for appellants.
    Eobert E. Dolph and James E. Cheatham, of Aurora, for appellees.
   McNEAL, P. J.

An automobile collision, involving vehicles driven by Marcella Wolf and Sophia Solem, occurred on June 15, 1956. Both vehicles were insured by State Farm Mutual Automobile Insurance Company. A Company adjuster made a settlement with the Solems for their property damages and personal injuries and took instruments purporting to be releases from tbem. On April 22, 1958, tbe Solems filed a complaint in tbe Circuit Court of Kane County against Marcella Wolf to recover damages for personal injuries and loss of consortium. Marcella Wolf moved to dismiss the complaint by reason of tbe releases and supported ber motion by affidavit. Counter-affidavits were filed by tbe Solems. Tbe Court denied tbe motion to dismiss without prejudice to tbe right to plead tbe releases in answer to tbe complaint.

On January 13, 1959, and prior to tbe time Marcella Wolf was ruled to answer tbe complaint in tbe original action, she and ber husband, Elvis, who was also named in tbe releases, and tbe Company commenced another action in tbe same court by filing their verified complaint for a declaratory judgment against tbe Solems. In tbe latter action they sought a declaration that tbe Wolfs were not obligated to tbe Solems, and a stay of all proceedings in tbe former suit pending this action. Copies of tbe policies issued by tbe Company and the purported releases were attached to tbe complaint.

The Solems filed a motion supported by affidavit to dismiss tbe complaint for declaratory judgment. They asserted that Marcella Wolf bad filed an answer denying liability in tbe damage suit, which was then at issue and on tbe trial calendar; that no controversy existed between tbe Solems and tbe Company or between tbem and Elvis Wolf; that tbe Company could not become involved in any such controversy until Marcella Wolf was legally obligated to pay a judgment to tbe Solems; and that tbe complaint failed to state a cause of action. A counter-affidavit was filed on behalf of Marcella Wolf. All of tbe foregoing facts with reference to tbe pendency of tbe first action appear on tbe face of tbe complaint for declaratory judgment and attached exhibits, in tbe affidavit in support of the motion to dismiss, or in the counter-affidavit. The trial court dismissed the complaint for declaratory judgment and gave Solems judgment for costs. This appeal followed.

Appellants contend that they will be prejudiced if the insurance question is raised before a jury in the first action, and that prejudice will be avoided if the validity of the releases is determined in this proceeding for declaratory judgment. However, plaintiffs filed a demand for a trial by jury in this action for declaratory relief, rather than a trial by the court. It is difficult to understand how it would benefit plaintiffs to avoid alleged prejudice in the first action and demand similar prejudice in this action. It cannot be said that the matter of insurance will necessarily be disclosed in the first action, and, if disclosed, that such disclosure would necessarily prejudice plaintiffs. Their demand for a trial by jury in this action for declaratory judgment materially weakens their contention with reference to avoidance of prejudice.

The granting of declaratory relief is clearly within the discretion of the trial court. Section 57.1 of the Civil Practice Act (Ill. Rev. Stat. 1957, Chap. 110, par. 57.1) provides, in part, as follows:

“(1) No action or proceeding in any court of record is open to objection on the ground that a merely declaratory judgment, decree or order is sought thereby. The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination, at the instance of anyone interested in the controversy, of the construction of any statute, municipal ordinance, or other governmental regulation, or of any deed, will, contract or other written instrument, and a declaration of the rights of the parties interested. The foregoing enumeration does not exclude other cases of actual controversy. The court shall refuse to enter a declaratory judgment, decree or order, if it appears that the judgment, decree or order would not terminate the controversy or some part thereof, giving rise to the proceeding.”

In Kitt v. City of Chicago, 415 Ill. 246, 252, 112 N.E.2d 607, the Supreme Court, in referring to the declaratory provisions of the Civil Practice Act, said that “The Act, by its terms, is permissive.”

In Fairbanks, Morse & Co. v. Freeport, 5 Ill.2d 85, 90, 125 N.E.2d 57, defendant moved to dismiss a complaint for declaratory judgment on the grounds that the county court had assumed jurisdiction of the subject matter and that the same parties were litigating the matter in the county court. The circuit court denied the motion to dismiss and after defendant answered, the court heard the matter and declared unconstitutional certain sections of the Revised Cities and Villages Act pertaining to annexation of territory contiguous to a municipality. The Supreme Court said:

“Moreover, it is clear that this issue is one that may be and was raised in the county court. Therefore, to this extent at least, at the time the complaint for declaratory judgment action was filed, the first issue presented to the circuit court was pending in the county court proceeding in which the same parties were involved. The circuit court suit was but an effort to make the declaratory judgment provisions of the Civil Practice Act serve the function of securing a circuit court decision for the purpose of conclusively determining litigation then pending between the same parties in the county court. When a matter is thus pending in the county court and that court’s jurisdiction is based upon a statutory grant of power, we do not believe declaratory judgment proceedings commenced subsequently in tbe circuit court can be used to oust tbe county court of its jurisdiction to pass upon tbe matter. See 135 A.L.R. 934. . . . For tbe reasons stated, tbe decision of tbe circuit court ... is reversed and tbe cause remanded with directions to dismiss tbe action.”

In Burgard v. Mascoutah Lumber Co., 6 Ill.App.2d 210, 127 N.E.2d 464, tbe judgment for defendant in a declaratory judgment proceedings followed a jury’s verdict on issues made under a motion to dismiss tbe complaint.

In Hudson v. Mandabach, 22 Ill.App.2d 296,160 N.E. 2d 715, tbe primary question was whether a complaint for declaratory judgment can be brought in a second court when tbe same point was involved in a case in another court between the same parties. Tbe court said:

“Thus, it appears that tbe declaration sought might well eliminate tbe principal argument between tbe parties and could result in terminating tbe prior suit or in lessening tbe length of the trial. Salutary as this may seem, we think it should not be permitted. Tbe Municipal Court bad taken cognizance of tbe litigation, bad tbe power to dispose of it completely and had tbe right to do so without interference. Whether tbe declaratory judgment favored tbe plaintiff or defendant, it certainly would be used to influence, if not control, tbe outcome of tbe Municipal Court case.
“To bold that there could be a declaratory judgment action in one court simultaneously with a case pending in a different court, involving tbe same parties and a similar issue, would open the door to abuses. This could result in multiple litigation, unavoidable interference and conflict among tbe courts and attempts to obtain persuasive finding’s or advisory opinions with the intent to affect the outcome of concurrent cases.”

Defendant’s answer in Hudson v. Mandabach prayed for a dismissal, but no motion for involuntary dismissal under section 48 (1) (c) of tbe Civil Practice Act was presented. Nevertheless tbe court said that tbe suit for declaratory judgment should have been dismissed, and reversed and remanded tbe case with directions to dismiss tbe complaint.

Tbe complaint for declaratory relief and tbe affidavits on file in tbe instant case show that there was another action pending in tbe same court between substantially tbe same parties and involving substantially tbe same or similar issues. That action which had already accrued when tbe complaint was filed, afforded the parties an adequate remedy at law for adjudication of their rights and liabilities, including tbe validity or invalidity of tbe releases. No material or genuine disputed question of fact with reference to tbe pendency of tbe other action was raised. In tbe light of tbe decisions cited above, dismissal of this action on defendants’ motion was an appropriate judicial method of declining to grant declaratory relief, and was well within tbe trial court’s discretion. Tbe judgment of tbe Circuit Court of Kane County is affirmed.

Affirmed.

DOVE, J., concurs in affirming tbe judgment of tbe trial court.

SPIVEY, J.,

dissenting.

The order of tbe Circuit Court of Kane County dismissing tbe cause should be reversed. Tbe complaint states a cause of action and an order dismissing a good complaint is erroneous. I agree that this is not a case for declaratory judgment and agree that the trial court should have declined to grant declaratory relief. We should reverse the order dismissing the complaint, so that it is clear that a trial court has no right to dismiss a good cause of action. Then we should enter a decree here declining to grant declaratory relief without prejudice to the plaintiffs to plead the release in the original action. Burgard v. Mascoutah Lumber Co., 6 Ill.App.2d 210, 218, 127 N.E.2d 464; Frazier v. City of Chattanooga, 156 Tenn. 346, 1 S.W. 2d 786; Richardson v. Danson (Wash.), 270 P.2d 802.

It seems to me to be more than just a play on words or an exercise in dialectics to point out what I consider to be the error of the trial court and the majority.

True, we reach the same result by our diverse paths. However, I am fearful that the majority will be understood as having approved the dismissal of an action when there was no basis for the dismissal. There is a real distinction between dismissing a suit on motion and declining to grant declaratory relief. In the first instance the question is a legal one and in the latter situation the action lies in the sound discretion of the court. We must not be understood as approving the dismissal of a cause in the discretion of the trial court.  