dissenting:
Jurisdiction is the issue. Morey Fish Company is a Minnesota corporation. It was never named a party to the Federal court action, either before or after the trial. Morey Fish Company contends that it has an absolute defense and that it has not had an opportunity to be heard. Because the only issue before us concerns jurisdiction, I will not discuss the many facts, however interesting, that do not bear on that issue.
The underlying lawsuit was filed in the United States District Court in the Northern District of Illinois on June 13, 1988, by Rymer Foods, Inc., against W.J.F. International, Inc., William J. Frank and Stephen W. Frank, d/b/a Morey’s Fish House. W.J.F. is owned by William Frank, Stephen Frank and Gregory Frank. William Frank’s affidavit stated that he was president and chief executive officer of Morey Fish Company. He attended the trial and was called as an adverse witness and also testified as a witness for W.J.F. According to the affidavit, William Frank had no idea that Rymer would seek a judgment against Morey Fish Company. Morey Fish Company has an absolute defense.
Stephen Frank’s affidavit stated that he is the president of W.J.F., which is totally independent from Morey Fish Company. Loren Morey’s affidavit stated that he is the chairman of the board and a shareholder of Morey Fish Company. The other shareholders are Kathryn Morey, William Frank and Stephen Frank. Loren Morey holds no office and no stock of W.J.F. The business of W.J.F. and Morey Fish Company are separate and distinct businesses.
At the conclusion of the trial in the United States District Court, a judgment was entered in favor of Rymer and against Morey’s Fish House. A judgment was also entered in favor of W.J.F., William Frank and Stephen Frank. Rymer moved to amend the judgment requesting that the district court enter a judgment against the individuals and also, most significantly for our appeal here, asking for judgment to be entered in favor of “Morey’s Fish House and/or Co.”
The district court did amend the judgment by naming Morey Fish Company, but did not accede to the request concerning the other defendants. In doing so, the court noted Rule 15(a) of the Federal Rules of Civil Procedure that directs courts to amend freely “where justice requires.” The court stated that the “parties recognized that the issue of Morey Fish Company was a crucial element” and that there was an “implicit understanding” that Morey Fish Company was a proper defendant.
I believe the majority’s statement of the law in citing Brownlee v. Western Chain Co. (1977), 49 Ill. App. 3d 247, 251, 364 N.E.2d 926, states the law of this case. There the court says that full faith and credit must be extended to a judgment where inquiry discloses that the issue of jurisdiction has been litigated and decided in the rendering court. For that proposition Brownlee cites the United States Supreme Court case of Baldwin v. Iowa State Traveling Men’s Association (1931), 283 U.S. 522, 75 L. Ed. 1244, 51 S. Ct. 517. In Baldwin the respondent in the United States District Court of Western Missouri appeared specially and moved to quash and dismiss for want of service. After a hearing on the motion, the motion was denied and leave was given to the respondent to plead within 30 days. The respondent did not do so and a judgment was entered for the petitioner and against the respondent in the amount claimed. Subsequently, there was an action in the district court for Southern Iowa on the judgment and a ruling in favor of the petitioner. The defense of the petitioner in Iowa was the same as in Missouri, that is lack of jurisdiction. The defense was that the respondent was an Iowa corporation and that it was never present in Missouri. In the United States District Court in Iowa, the petitioner asserted that this was a collateral attack and a retrial of an issue settled in the first suit.
The Baldwin court commented that the special appearance of the respondent in Missouri showed that it entered the Missouri court for the very purpose of litigating the question of jurisdiction over its person. It noted that it had an election not to appear at all, and if in fact it had not done so and the court had proceeded to judgment, the respondent could have raised and tried the issue in this present action because it would never have had its day in court with respect to jurisdiction. The Baldwin court explained its rationale as follows:
“Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties. We see no reason why this doctrine should not apply in every case where one voluntarily appears, presents his case and is fully heard, and why he should not, in the absence of fraud, be thereafter concluded by the judgment of the tribunal to which he has submitted his cause.” Baldwin v. Iowa State Traveling Men’s Association (1931), 283 U.S. 522, 525-26, 75 L. Ed. 1244, 1247, 51 S. Ct. 517, 518.
Applying the law to the facts of this case, I come to the conclusion that the question of jurisdiction has not been litigated in the United States District Court. Morey Fish Company has never had an opportunity to voluntarily appear, present its case and be fully heard. Morey Fish Company to this day has never been made a party to the lawsuit in that court, nor has it ever been heard on any defenses it has to that lawsuit. The fact that two officers of Morey Fish Company were parties to the lawsuit does not militate against that finding. Those two shareholders were also shareholders of a named defendant, W.J.F. International. The fact that the rules concerning amendments are to be liberally applied does not mean that notice and service of process on a party may be disregarded. The district court’s comments that “the parties recognized” that Morey Fish Company’s liability was crucial and that there was an “implicit understanding” that Morey Fish Company was a proper defendant in this action is a bootstrap argument and begs the question. The “parties” to whom the United States District Court referred as having recognized the issue and had the implicit understanding did not include the plaintiff’s corporation in the instant lawsuit, Morey Fish Company. Before it can be said that a court has considered its jurisdiction, the party contesting jurisdiction must be brought before the court by process.
This matter comes here on a motion to dismiss pursuant to the Illinois Code of Civil Procedure, sections 2 — 601(a)(1) and (a)(9), asserting that the circuit court of Cook County has no jurisdiction. I believe that the circuit court did indeed have jurisdiction and that the dismissal should be reversed.