Branom v. Miller
| Decision Date | 15 January 1960 |
| Docket Number | Gen. No. 5908 |
| Citation | 25 Ill.App.2d 94,166 N.E.2d 123 |
| Parties | Byge BRANOM, Plaintiff-Appellant, v. Clyde MILLER, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Kenneth A. Green, Mattoon, Thomas J. Logue, Mattoon, of counsel, for appellant.
Smith McCollum & Riggle, Flora, for appellee.
The plaintiff, Byge Branom, appeals from an order which dismissed his suit on motion of the defendant, which set up a prior judgment in bar of the action. Plaintiff here contends that the prior judgment was merely a non-suit and that the present suit was filed within one year after the non-suit pursuant to Sec. 24a, Ch. 83, Ill.Rev.St., which reads as follows:
'In any of the actions specified in any of the sections of this act * * * if the plaintiff be nonsuited, then, if the time limit for bringing such action shall have expired during the pendency of such suit, the said plaintiff * * * may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after.'
The present suit would be barred by the statute of limitations unless the foregoing section applies. Its application depends upon whether the prior action was non-suited as the plaintiff claims, or was disposed of by final judgment as contended by the defendant.
The facts of what took place are not in dispute. It appears that the prior case was called for trial, a jury was impaneled and sworn, the attorneys made their opening statements, and thereupon the defendant filed a motion for judgment upon the ground that his answer set forth affirmative defenses which were a bar to the suit and that the plaintiff had not replied or in any way denied the facts of the affirmative defenses. The plaintiff did not ask leave to file a reply and the motion was allowed. The court entered judgment in form as follows:
'Judgment for the defendant and against plaintiff that plaintiff go hence without day and take nothing as the result of this suit.'
We deem it clear that the foregoing judgment purports on its face to be a final judgment in bar of the action and does not purport to be a discontinuance, dismissal, or nonsuit. In Kraegel v. Daros, 333 Ill.App. 651, 77 N.E.2d 883 (abstract) the court had before it a parallel state of facts, except that, instead of allowing a motion for judgment based on failure to deny the affirmative defense, the trial court after hearing the motion allowed the plaintiff's motion for a nonsuit. Upon appeal the result was reversed and the cause remanded with directions to enter a judgment for the defendant and against the plaintiff. The court said:
In our opinion the foregoing decision is correct. If a suit is dismissed for some technical defect, or for failure to proceed, even where the dismissal does not contain the words, 'without prejudice,' the result would not be a bar to a subsequent action brought within a year. On the other hand, a final decree in chancery dismissing an action on the merits, or the equivalent dismissal of an action at law when the matters of the complaint have been passed on, is a bar to any new complaint between the same parties on the same subject matter. 23 I.L.P. Judgments § 324.
In the Restatement on Judgments, Sec. 48 states the rule:
'Where a valid and final personal judgment is rendered on the merits in favor of the defendant, the plaintiff cannot thereafter maintain an action on the original cause of action.'
The comment on the foregoing rule contains the following:
The fact is, the plaintiff did attempt to take an appeal from the prior judgment, but failed to comply with the rules of law and the appeal was dismissed.
It appears to be plaintiff's theory that there can be no judgment upon the merits except upon evidence heard. This is not the law. It is...
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