dissenting:
The Michigan injunction appears to have been based (1) upon the venue statute of that State which requires that an action against a railroad be brought in the county of the plaintiff’s residence if the railroad’s lines traverse that county, and (2) upon allegations as to impossibility of compelling the attendance of witnesses in Illinois and the added expense and inconvenience of trying the action in Illinois. On the authority of Atchison, Topeka & Santa Fe Railway Co. v. Sowers, 213 U.S. 55, 53 L. ed. 695, and Tennessee Coal, Iron, & Railroad Co. v. George, 233 U.S. 354, 58 L. ed. 997, defendant concedes that Illinois is not required to give full faith and credit to the Michigan venue statute. It urges, however, that Illinois is required to give full faith and credit to the injunction issued by the Michigan court.
I agree with the majority that in situations like the present one, the useful maxim “equity acts in personam” does not tell the full story. By concentrating upon the immediate effect of the injunction it overlooks the purpose for which it was sought and the result that it must achieve if it is to accomplish its purpose. When the Chancellor, in Bacon’s day, enjoined the successful party from enforcing the judgment he had obtained at law, the end result was an interference with the processes of the law courts. In the same way, if the Michigan injunction accomplishes its purpose, the operation of the Illinois courts will have been interfered with. It is this inevitable interference with the operation of the courts of sister States that has largely prompted this court’s reluctance to authorize the issuance of such injunctions. And I think that this inevitable interference has a bearing upon the claim of such an injunction to recognition under the full-faith-and-credit clause.
So far as I have been able to ascertain, no court has as yet held that such an injunction is entitled to full faith and credit in the sense that the action toward which the injunction is directed must be abated. When such injunctions have been recognized, it has been because the State in which the action is pending has chosen to do so as a matter of comity, and not because it was required to do so by constitutional command. Allen v. Chicago Great Western Railroad Co. 239 Ill. App. 38; Odom v. Langston, (W.D. Mo.) 75 F. Supp. 651; Fisher v. Pacific Mutual Life Insurance Co. 112 Miss 30, 72 So. 846; Equitable Life Assurance Soc. v. Gex’s Estate, 184 Miss. 577, 186 So. 659.
While the courts appear to agree that injunctions like this one are not entitled to full faith and credit, it has been suggested that the injunction is an adjudication of the equitable right of the party seeking it not to be sued in the foreign court, and so is entitled to full faith and credit. (See 33 Yale L.J. 95; cf. Goodrich, Conflict of Laws, 3rd ed., sec. 218.) The Restatement agrees with the view taken by the courts. (Restatement, Conflicts, sec. 450.) In part this view appears to rest upon the ground that to recognize the injunction is to recognize the claim of the enjoining State to exclusive cognizance of a transitory cause of action, which might abridge constitutional privileges. (17 Harv. L.R. 57,' 37 Harv. L.R. 157; 72 U. Pa. L.R. 429.) In part it appears to rest upon the ground that to recognize the injunction would “mean in effect that the courts of one State can control what goes on in another.” (42 Iowa L.R. 199.) For these reasons I agree with the majority that the Michigan injunction is not entitled to full faith and credit.
But the question in this case goes a step beyond the issue as to full faith and credit. What is here sought is a counter-injunction to restrain the railroad from enforcing the injunction entered by the Michigan court. The difficulties that attend the kind of injunction that the Michigan court entered were stated long ago by Chancellor Walworth: “If this court should sustain an injunction bill to restrain proceedings previously commenced in a sister state, the court of that state might retaliate upon the complainant, who was defendant in the suit there; and, by process of attachment, might compel him to relinquish the suit subsequently commenced here. By this course of proceeding, the courts of different states would indirectly be brought into collision with each other in regard to jurisdiction; and the rights of suitors might be lost sight of in a useless struggle for what might be considered the legitimate powers and rights of courts.” (Mead v. Merritt and Peck (N.Y. Chan. 1831) 2 Paige 402. What was there said with respect to an initial injunction applies with added force to a counterin junction. Just as the first injunction sired the second, so the second might sire a third. The ultimate end is not foreseeable.
The place to stop this unseemly kind of judicial disorder is where it begins. The peculiar preference of one State for a particular venue in a single class of cases does not, it seems to me, afford a basis for indirect interference with litigation pending in another jurisdiction. The salutary power of a court of equity to restrain the prosecution of inequitable actions in a foreign court originated and developed upon more substantial considerations. But we are not called upon to review the propriety of the Michigan injunction. Plaintiff did not seek to review it in the Michigan courts. While venue statutes are usually permissive, Michigan’s special provision with respect to actions against railroads appears to require that such actions be brought only in a particular county. (Pere Marquette Railway Co. v. Slutz, 268 Mich. 388, 256 N.W. 458.) The Michigan court applied its statute to a Michigan administrator. Illinois has no connection whatever with the occurrences out of which the administrator’s claim arose. The policy of Illinois with respect to the maintenance of foreign wrongful death actions was expressed in section 2 of the Injuries Act. (Ill. Rev. Stat. 1955, chap. 70, par. 2,) which prohibited them. While it is true that this prohibition is no longer effective, the policy that it expressed is also of significance in determining whether or not a counterin junction should have been issued.
I think that the trial court and the Appellate Court were right, and so I would affirm.
Hershey and Davis, JJ., join in this dissent.