Among the cases cited by Holman, at least two merit some discussion. In Karon v. E.H. Marhoeffer, Jr., Co., 14 Ill. App.3d 274, 302 N.E.2d 478 (1973), a pedestrian brought action against a general contractor and subcontractor for injuries sustained when he fell at a construction site. The contractor and subcontractor were, as here, codefendants.
As a co-defendant, Columbus had adequate opportunity to contest the original summary judgment motion. Karon v. E.H. Marhoeffer, Jr. Co., 14 Ill.App.3d 274, 302 N.E.2d 478, 481 (1st Dist. 1973). Columbus contends that newly discovered evidence was unavailable at the time Reliable's motion for summary judgment was granted.
As noted, ANR's attorney has now cited for the first time more than 20 cases, including two in which the members of the majority participated. In the one decided in 1973, in which Justice Egan concurred ( Karon v. E.H. Marhoeffer, Jr. Co. (1973), 14 Ill. App.3d 274, 302 N.E.2d 478), and which involved a claim for indemnity not contribution, the sole argument made by the third-party plaintiff was that it had not been given an opportunity to participate in the third-party defendant's motion for summary judgment against the plaintiff. The appellate court held that it had.
( Rose v. Dolejs (1955), 7 Ill. App.2d 267, 129 N.E.2d 281.) Inland and Milwaukee Golf were codefendants under plaintiff's amended complaint. Inland, in its role as defendant, was granted summary judgment against the plaintiff. The fact that Milwaukee Golf did not resist the efforts of its codefendant Inland to obtain summary judgment does not preclude the application of collateral estoppel to Milwaukee Golf's third-party complaint for contribution. (See Karon v. E.H. Marhoeffer, Jr. Co. (1973), 14 Ill. App.3d 274, 302 N.E.2d 478 (defendant who had notice and opportunity to participate in hearing on codefendant's motion for summary judgment against plaintiff is collaterally estopped from bringing third-party suit against codefendant for indemnification). See also McLellan v. Columbus I-70 West Auto-Truckstop, Inc. (N.D. Ill. 1981), 525 F. Supp. 1233; La Salle National Bank v. Fitzgerald (1973), 15 Ill. App.3d 1016, 305 N.E.2d 355.) Milwaukee Golf has not argued that it did not have an opportunity to participate in the hearings on Inland's motion, nor does it contend that it had no notice of the summary judgment motion.
Because of our resolution of these aspects of the trial court's rulings we do not reach the issue of whether the voluntary dismissal of plaintiff's cause of action against Fields barred Economy's counterclaim against Fields on grounds of collateral estoppel, an issue on which there is presently conflicting authority in Illinois. Compare Gay v. Open Kitchens, Inc. (1981), 100 Ill. App.3d 968, 427 N.E.2d 338, with Karon v. E.H. Marhoeffer, Jr., Co. (1973), 14 Ill. App.3d 274, 302 N.E.2d 478. The judgment of the trial court is affirmed.
In addition, while the purpose of the doctrine is to prevent a party from litigating the same issue twice, it should not be used to preclude a party from litigating the matter at all. • 4, 5 We therefore conclude that Gullo's contention that it is entitled to summary judgment against Open Kitchens on the basis of collateral estoppel is untenable. (But see Karon v. E.H. Marhoeffer, Jr. Co. (1973), 14 Ill. App.3d 274, 302 N.E.2d 478.) The trial court erred in granting Gullo's motion for summary judgment against Open Kitchens and in denying Open Kitchens' motion for leave to amend its third-party complaint to allege a breach of implied warranty action.
• 1-4 Estoppel by verdict or collateral estoppel is an extension of the doctrine of res judicata. ( Karon v. E.H. Marhoeffer, Jr. Co. (1973), 14 Ill. App.3d 274, 278-79, 302 N.E.2d 478.) It is based on the principle that a question once adjudicated by a proper court is to be considered as finally settled and conclusive on the unsuccessful parties. ( Lynch v. Chicago Transit Authority (1965), 62 Ill. App.2d 220, 210 N.E.2d 792.) Estoppel by verdict or collateral estoppel is applicable even where the parties are not arrayed on opposite sides in prior litigation or formal issues have not been drawn up between them. Diamond Shamrock Corp. v. Lumbermens Mutual Casualty Co. (7th Cir. 1969), 416 F.2d 707, 710; Lynch, at 222.
Stangle v. Chicago Rock Island and Pacific R.R. Co. (7th cir. 1961), 295 F.2d 789, 790, 791 citing Rose v. Dolejs, 7 Ill. App.2d 267, 275, 129 N.E.2d 281; Lynch v. Chicago Transit Authority, 62 Ill. App.2d 220, 222, 210 N.E.2d 792. In Karon v. Marhoeffer, Appellate Court, First District, Gen. No. 57263, 14 Ill. App.3d 274, 302 N.E.2d 478, a negligence action was brought against three defendants. One defendant made a motion for summary judgment which was sustained on the specific ground that said defendant was not guilty of negligence.