specially concurring:
I do not believe mandamus is proper where a defendant contends it was not subject to service of process in the jurisdiction since it was not “doing business” within the State. Should the trial court rule adversely, that issue is vital for review after a trial on the merits. It is properly preserved for review by a special appearance and a motion to quash the summons, service and return. Such was the case here.
The Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 20(3)) provides:
“Error in ruling against the defendant on the objection is waived by the defendant’s taking part in further proceedings in the case, unless the objection is on the ground that the defendant in not amenable to process issued by a court of this State.” (Emphasis supplied.)
See Keats v. Cates (1968), 100 Ill. App. 2d 177, 183-84.
As I have pointed out in my dissent in Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 335-37:
“Mandamus is sought not only to order the respondent to act, but to act in a particular way. Whether the ruling of the judge was erroneous and, if so, to what extent, are matters which we are called upon to decide. But it is a well-established rule that ‘[f] or mere error, however gross or manifest, the remedy is an appeal or writ of error, and the writ of mandamus will not lie for its correction if the court has jurisdiction of the subject matter and the parties.’ People ex rel. Barrett v. Shurtleff (1933), 353 Ill. 248, 259-60; People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1958), 12 Ill. 2d 515, 523.
Mandamus should not issue where its object is to circumvent the normal appellate process. (People ex rel. Sears v. Romiti (1971), 50 Ill. 2d 51, 55; People ex rel. Castle v. Spivey (1957), 10 Ill. 2d 586, 591.) Mandamus does not lie where the result is to fragment the appeal. (People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1958), 12 Ill. 2d 515, 523; People ex rel. Clark v. McRoberts (1881), 100 Ill. 458, 561.) The proper remedy for errors in the trial proceedings is an appeal, not a petition for writ of mandamus. People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1958), 12 Ill. 2d 515, 520.
Highly analogous is a motion for change of venue. Although the motion may be improperly . denied, mandamus will not lie to review such an order. In People ex rel. Clark v. McRoberts (1881), 100 Ill. 458, 461, this court, in denying an original application for leave to file a petition for a writ of mandamus from a denial of a change of venue, noted:
‘After an examination of the authorities, and the briefs of the parties, we are of opinion that the writ will not lie. *** If the writ was allowed in this case compelling the court to enter a mere interlocutory order, we see no reason why it might not be asked for and granted in every case while the suit was progressing, compelling the court to enter particular orders. In other words, it would be to bring up the case in fragments from the court below, and have every ruling of that court passed upon during the progress of the case, and in that way bring cases before the court where there was no final judgment or determination in the court below.’ ”
So also section 6 of the Federal Employers’ Liability Act (45 U.S.C. sec. 56 (1970)), providing that an action may be brought in the district in which the defendant shall be “doing business” at the time of the commencement of the action and that the jurisdiction of the courts of the United States shall be concurrent with that of the State courts, controls this action under the FELA. See Miles v. Illinois Central R.R. Co. (1942), 315 U.S. 698, 86 L. Ed. 1129, 62 S. Ct. 827; Baltimore & Ohio R.R. Co. v. Kepner (1941), 314 U.S. 44, 50, 86 L. Ed. 28, 31-32, 62 S. Ct. 6, 8.
While I concur in the result in this case, a comparison of the majority opinion here with the majority in Baltimore & Ohio R.R. Co. v. Mosele will make manifest many inconsistencies between the two.