Brown v. Burdick

• Decision Date: 15 February 1974
• Docket Number: No. 72--264,72--264
• Citation: 16 Ill.App.3d 1071,307 N.E.2d 409
• Parties: Joseph BROWN, Plaintiff-Appellant, v. Willard BURDICK, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 409

307 N.E.2d 409

16 Ill.App.3d 1071

Joseph BROWN, Plaintiff-Appellant, v. Willard BURDICK, Defendant-Appellee.

No. 72--264.

Appellate Court of Illinois, Second District.

Feb. 15, 1974.

Wm. R. Jacobs, II, Chicago, Byron P. Finegan, Des Plaines, for plaintiff-appellant.

Gilbert & Powers, Rockford, for defendant-appellee.

THOMAS J. MORAN, Justice.

This is an appeal from an order dismissing plaintiff's second complaint. Plaintiff claims that his second suit was not barred by the statute of limitations, that the dismissal of the initial suit (for want of prosecution) was not grounds for dismissing the second suit, and dismissal of the prior suit during pendency of the second suit removed any grounds for a plea of abatement.

Plaintiff was injured on October 25, 1964 and filed his original action on October 25, 1966, the last day before the running of the statute of limitations (Ill.Rev.Stat.1971, ch. 83, § 15). In November of 1966, defendant moved to dismiss the complaint; the motion was denied. Over four years from the date of original filing (March 31, 1971), the complaint was dismissed for want of prosecution.

On April 30, 1971, plaintiff filed a petition to reinstate his cause of action: this was denied on May 6, 1971; on June 4, he filed a petition for reconsideration of the May 6th order: this was denied on December 9, 1971. Plaintiff filed a notice of appeal on January 6, 1972, and, thereafter (on March 27, 1972) while his appeal was pending, he filed a second suit naming the same defendant and alleging the same cause of action.

On April 7, 1972, plaintiff filed a motion in this Court for extension of time to file his abstract and brief; the motion was granted and time extended. Shortly thereafter, defendant filed a motion to dismiss the appeal for noncompliance with Supreme Court Rules 303(d), 322 and 327, Ill.Rev.Stat.1973, ch. 110A, §§ 303(d), 322, 327, and asserted that another suit between the same parties, involving the same matter, was pending in the trial court. This Court dismissed the appeal.

Just prior to that dismissal, however, defendant filed a motion in the trial court to dismiss plaintiff's second complaint on the grounds that it was barred by the statute of limitations, that a prior suit, involving the same cause and parties, was still pending on appeal, and that the second complaint failed to state a cause of action. Defendant's motion to dismiss the second suit was granted on May 26, 1972. Plaintiff filed his notice of appeal in the present case on June 22, 1972. (As can be seen, plaintiff has consistently waited until the last moment to file his complaints, motions or notices of appeal.)

It is contended that the second suit is not barred by the statute of limitations when the original action has been dismissed for want of prosecution because the plaintiff, under Section 24 of the Limitation Act (Ill.Rev.Stat.1971, ch. 83, § 24a), may file a new action within one year or within the remaining period of limitation, the longer period of time controlling. By filing his second suit within one year after the first was dismissed, plaintiff comes within the letter of Section 24. However, where there is a conflict between the letter of a statute and its spirit and intent, the spirit and intent is controlling. (Inskip v. Trustees, Univ. of Ill., 26 Ill.2d 501, 510, 187 N.E.2d 201 (1962).) In construing statutes, legislative intent must be determined from considerations of the general purpose and effect sought to be accomplished. (Gray v. Amer. Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 436, 176 N.E.2d 761 (1961).) The object and purpose of Section 24 is to protect a plaintiff, who brings an action in good faith, from a complete loss of relief due to procedural defects and permit him the opportunity to have a trial on the merits. (Roth v. Northern Assurance Co. Ltd., 32 Ill.2d 40, 42, 203 N.E.2d 415 (1964).) The section was never intended for the use of a plaintiff whose self-initiated delay amounted to a virtual abandonment of his cause of action. (Tidwell v. Smith, 57 Ill.App.2d 271, 274--275, 205 N.E.2d 484 (1965).) It was intended to serve as an aid to the diligent, not a refuge for the negligent. Quirino v. Chicago Tribune-New York News Syn., 10 Ill.App.3d 148, 150, 294 N.E.2d 29 (1973).

Section 24...