Campbell v. Harrison
| Decision Date | 19 December 1973 |
| Docket Number | No. 56849,56849 |
| Parties | Gladys CAMPBELL, Plaintiff-Appellant, v. General Lamar HARRISON et al., Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Heller & Morris, Torshen, Cohen & Eiger, Ltd., Chicago, for plaintiff-appellant; Jerome H. Torshen, Robert A. Skirnick, Chicago, of counsel.
Robert L. Brody and George J. Gore, Chicago, for defendants-appellees; Leon M. Fineberg, Chicago, of counsel.
This is an appeal from an order of the Circuit Court of Cook County striking plaintiff's amended complaint for failure to state a cause of action and from an order which granted defendants' motion to dismiss the suit for failure to file a second amended complaint.
The issues for review are whether the plaintiff's failure to inform the court she wished to stand on her first amended complaint after it was stricken acted as a waiver of her right to an appeal of the ruling striking the amended complaint for failure to state a cause of action, or whether under Supreme Court Rule 273, the order did not become appealable until there was a final dismissal which constituted an adjudication on the merits, and whether the court was correct in holding the amended complaint did not state a cause of action.
The plaintiff, Gladys Campbell, brought this action against the defendants, General Lamar Harrison, Dorothy Marie Harrison, Cheshire and Shotwell, Inc., and James Walker. She alleged she was injured when a portion of plaster from the ceiling of her living room fell and struck her and alleged the defendant were guilty of negligence and a breach of duty with respect to the operation and maintenance of the apartment building in which she lived.
Plaintiff's original complaint, filed on August 29, 1969, was stricken for failure to state a cause of action, and she was granted leave to file an amended complaint. She filed an amended complaint on February 24, 1970, and on June 24, 1971, the court granted the defendants' motion to strike the amended complaint and gave the plaintiff 28 days to file a second amended complaint.
On September 15, 1971, on a motion to dismiss the suit for failure to file her second amended complaint, the court extended the time for plaintiff to file a second amended complaint. On October 5, 1971, when a second amended complaint still had not been filed, the court entered an order dismissing the plaintiff's suit.
The plaintiff contends the amended complaint constituted a cause of action and it was error for the court to have stricken it. She argues she could not appeal that order until the court finally dismissed the suit so there was an adjudication upon the merits under Supreme Court Rule 273. Ill.Rev.Stat.1971, Ch. 110A, § 273.
The defendants contend the court was within its discretion in dismissing the suit after giving two time periods within which the plaintiff could file a second amended complaint. They rely on the case of Coatie v. Kidd et al. (1958), 17 Ill.App.2d 289, 149 N.E.2d 646, where the plaintiff filed a complaint which was dismissed by the court with leave granted to file an amended complaint. That amended complaint was not filed within the time specified by the court, and the defendants filed motions to dismiss the suit. On the day specified for the hearing on the motions, the plaintiff filed an amended complaint without leave of court. After considering the plaintiff's reasons for filing late, the court allowed the motions of the defendants and entered judgment dismissing the suit. The plaintiff appealed from only the order dismissing the suit for failure to file a timely amended complaint. The reviewing court held the time limit in an order granting leave to amend is not a nullity and it is not an abuse of discretion to dismiss a suit when the amended complaint is not filed in the time fixed by the court.
That case is not the same as the one before us, where the plaintiff appeals from both the order striking the amended complaint for failure to state a cause of action and the final order dismissing the suit. In the instant case the plaintiff elected to stand on her amended complaint as evidenced by the appeal from both orders.
The defendants cite the cases of Robinson v. City of Geneseo (1966), 77 Ill.App.2d 308, 222 N.E.2d 331, and Schoen v....
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Harl v. City of La Salle
...(state elected to stand on its complaint by bringing mandamus action after court struck complaint); Campbell v. Harrison, 16 Ill.App.3d 570, 306 N.E.2d 643, 644-45 (1st Dist. 1973) (plaintiff elected to stand on dismissed complaint by bringing appeal). Defendants also contend here that the ......
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Hiller v. Harsh
... ... F. C. Pilgrim & Co. (1975), 32 Ill.App.3d 563, 336 N.E.2d 374; Campbell v. Harrison (1973), 16 Ill.App.3d 570, 306 N.E.2d 643; Gula v. Gawel (1966), 71 Ill.App.2d 174, 218 N.E.2d 42), an employee of a tenant (Drewick v ... ...
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Harl v. City of LaSalle
...a decision was rendered on the merits, regardless of his failure to use the words "with prejudice."6 See Campbell v. Harrison, 16 Ill.App.3d 570, 306 N.E.2d 643 (1st Dist. 1973). The cases cited by plaintiff are inapplicable since they involve situations where trial courts dismissed cases w......
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People ex rel. Scott v. Carriage Way West, Inc.
... ... Failure to plead over within the time allowed by the trial court operates as an election to stand on the original pleading. (See Campbell v. Harrison (1973), 16 Ill.App.3d 570, 306 N.E.2d 643; Brainerd v. First Lake County National Bank of Libertyville (1971), 1 Ill.App.3d 780, 275 ... ...