MR. JUSTICE SULLIVAN delivered the opinion of the court.
This is an action to recover for a fire loss sustained by the plaintiff at his place of business on September 1, 1953. On August 30, 1954 the plaintiff filed suit in the United States District Court for the Northern District of Illinois, Eastern Division, against all of the defendant insurance companies which had insured the premises. The amount of each of the policies was as follows:
Northern Assurance Company, Ltd. ................ $1,500 Continental Insurance Company ................... 2,500 Pennsylvania Fire Insurance Company ............. 2,000 The Travelers Fire Insurance Company ............ 2,500 Minneapolis Fire and Marine Insurance Company ... 1,500
The total amount of coverage was $10,000, and plaintiff sought to recover that amount in his suit in the United States District Court.
The defendants filed a motion to dismiss on the grounds that although the amount in controversy exceeded $3,000 (a jurisdictional requirement at that time) the amount claimed against each defendant was less than $3,000, and the plaintiff could not aggregate the total claim against all of the defendants.
The plaintiff filed a reply setting forth the previous action in the United States District Court commenced within twelve months next after the inception of the loss, the motion of the defendants filed thereto, the order dismissing the case for lack of jurisdiction, which order was served upon the plaintiff on January 31, 1955, and the fact that this suit was filed in the Circuit Court of Cook County on February 1, 1955.
The plaintiff in his reply contended that under section 24(a), c 83 of the Ill Rev Stats 1955, having brought suit within one year after the dismissal order entered on January 28, 1955, he was entitled to maintain this suit.
On February 6, 1957, the defendants filed a motion for summary judgment on the ground that the plaintiff had not instituted his lawsuit within twelve months after inception of the loss, as provided for in the written contracts of insurance. This motion was denied by the then motion judge in the circuit court
The question raised here is whether a plaintiff who has filed a suit to recover on fire insurance policies, within the limitation period provided for in the policies, and whose suit has been dismissed for want of jurisdiction after the limitation period had expired, may file a new action within one year after such dismissal under section 24 of the Limitations Act (c 83, § 24(a), Ill Rev Stats 1955).
The plaintiff, in support of his contention, cited the case of Sachs v. Ohio Nat. Life Ins. Co., 131 F.2d 134, which involved sec 24 of the Illinois Limitations Act. The court on page 137 said:
The two foregoing cases are very forceful, but we are confronted with the case of Herb v. Pitcairn, 384 Ill. 237, 51 N.E.2d 277. In that case the plaintiff appealed from a judgment of the circuit court of Madison county sustaining the defendants' motion to dismiss and entering final judgment of dismissal in favor of defendants.
The plaintiff was an employee of the receivers of the Wabash Railway Company, and commenced an action in the city court of Granite City, Illinois, on December 22, 1937, against the defendants stating a cause of action under the Federal Employers' Liability Act for injuries claimed to have been sustained in the city of Decatur, Illinois, November 23, 1936. The case was tried in the city court in October, 1938, and resulted in a verdict in favor of the plaintiff, which was set aside upon a motion by the defendants for judgment notwithstanding the verdict.
The plaintiff appealed to the Appellate Court, which reversed and remanded, and that action was affirmed in the Supreme Court in Herb v. Pitcairn, 377 Ill. 405, 36 N.E.2d 555. Before that case was again tried, the cases of Werner v. Illinois Cent. R. Co., 379 Ill. 559, 42 N.E.2d 82, and Mitchell v. Louisville & N.R. Co., 379 Ill. 522, 42 N.E.2d 86, were decided by the Supreme Court, which held and determined that the city courts in Illinois were without jurisdiction to hear and determine the subject matter of any action, the cause of which arose outside of the territorial limits of the city court in which the action was pending. After
On August 21, 1942, the defendants filed their motion to dismiss the plaintiff's cause for the following reasons: That since the city court of Granite City had no jurisdiction of the case because it appeared the cause of action accrued outside of the territorial limits of Granite City (1) all orders entered, and all proceedings had in the city court of Granite City, including the order changing the venue thereof, were void and of no effect; (2) that the statute authorizing a city court to change the venue of an action of which it has no jurisdiction to a court having jurisdiction is contrary to section 1 of article VI of the constitution, and therefore void; and (3) said cause having been transferred on change of venue on July 17, 1942, more than two years after the date of the injury, November 23, 1936, the plaintiff could not maintain his action because it had not been commenced within two years from the date of his injury in a court having jurisdiction to hear and determine the same. The circuit court of Madison county sustained the motion and dismissed the plaintiff's suit.
After the entry of the judgment the judge of the circuit court signed a certificate that there was involved in the said final order and judgment the construction of the constitutions of the State of Illinois
The court in that case (Herb v. Pitcairn, 384 Ill. 237, 51 N.E.2d 277) on page 240 said the following:
And again on page 242 the court said:
The court concluded by stating that in that case jurisdiction of the suit was wholly lacking until July 31, 1942, and at that time the condition imposed upon the plaintiff with respect to bringing his suit had expired by lapse of time.
This case was taken by the Supreme Court of the United States on certiorari to the Supreme Court of Illinois.
The United States Supreme Court in Herb v. Pitcairn, 324 U.S. 117, reviewed the decision of the Supreme Court of Illinois. In that case the United States Supreme Court requested counsel for the petitioners to apply to the Supreme Court of Illinois for amendment or certificate which would show whether it intended to rest the judgments herein on an adequate and independent state ground or whether decision of the federal question was necessary to the judgment rendered.
The Supreme Court of Illinois in the case of Herb v. Pitcairn, 392 Ill. 151, 64 N.E.2d 318, under the heading "Announcement made March 21, 1945" in explaining its decision said on page 152:
The Supreme Court in its Announcement clearly states what the Illinois law is as pertains to the commencing of an action.
The United States Supreme Court rendered another opinion in the same case in 325 U.S. 77. The United States Supreme Court, after quoting from the Announcement of the Supreme Court of Illinois, stated that it was unable to agree to an interpretation of the federal statute by which a case is not commenced for its purposes unless instituted in a court with power to proceed to final judgment. It further stated on page 78:
The instant case, of course, does not involve the venue act or federal law.
The provision of the policy fixing the limitation within which a suit or action may be brought provides that none shall be brought "... unless commenced within twelve months next after the inception of the loss."
By applying the Illinois law as enunciated by our Supreme Court in its Announcement made on March 21, 1945, in the case of Herb v. Pitcairn, 392 Ill. 151, 64 N.E.2d 318, the proceeding which was filed in the United States District Court, which lacked jurisdiction, did not constitute a commencement of a suit or action within the period of limitation set forth in the policies of insurance. The instant suit filed in the circuit court, likewise, was not filed or commenced within twelve months next after the inception of the loss.
The Supreme Court of Illinois, after the second decision in the Herb case by the Supreme Court of the United States, wrote a second opinion found in 392 Ill. 138, 64 N.E.2d 519, in which it said on page 150:
Chap 83, section 24(a), Ill Rev Stats 1955, insofar as it pertains to this proceeding, is as follows:
Section 12 of the Limitations Act (c 83, § 13, Ill Rev Stats 1955) is as follows:
Section 16 of the Limitations Act (c 83, § 17, Ill Rev Stats 1955), insofar as pertinent to the issues in this case, is as follows:
The plaintiff contends that since the action here is based upon written contracts it comes within the provisions of section 16 of the Limitations Act, and since it is specified in section 16 it comes within the purview of section 24 of the Limitations Act, which provides in substance that in any of the actions specified in any of the sections of this act if plaintiff be nonsuited then if the time limited for bringing such action shall have expired during the pendency of such suit, the plaintiff may commence a new action within one year after such judgment reversed or given against the plaintiff. While the plaintiff contends that the present action under insurance policies comes within the purview of section 16 of the Limitations Act, he concedes that the limitation in the policies of insurance changed the time within which to commence action from ten years to one year.
The defendants contend that the suit on the policies of insurance does not come within the provisions of section 16 and that this action is not within the classes of cases specified in the Limitations Act.
Assuming that the instant case does come within the provisions of section 16 of the Limitations Act, except as to the time within which to bring the suit, nevertheless, since we have decided that the proceeding in the United States District Court, which lacked jurisdiction of the subject matter, was a nullity, and that under Illinois law no action was "commenced," as is required by both sections 12 and 16 of the Limitations Act, within the one-year period, section 24 of the Limitations Act could not be employed by the plaintiff to give life to the suit filed in the Circuit Court after the expiration of the limitation period in the policies.
The plaintiff has raised other points, but in view of our decision we feel it is unnecessary to discuss them.
SCHWARTZ, P.J. and DEMPSEY, J., concur.