Casillas v. Rosengren

• Decision Date: 09 August 1967
• Docket Number: Gen. No. 66--136
• Citation: 229 N.E.2d 141,86 Ill.App.2d 139
• Court: United States Appellate Court of Illinois
• Parties: Esther CASILLAS, a minor, by Maria Casillas, her mother and next friend, Petitioner-Appellant, v. Orville ROSENGREN, Respondent-Appellee.

Page 141

229 N.E.2d 141

86 Ill.App.2d 139

Esther CASILLAS, a minor, by Maria Casillas, her mother and next friend, Petitioner-Appellant, v. Orville ROSENGREN, Respondent-Appellee.

Gen. No. 66--136.

Appellate Court of Illinois, Second District.

Aug. 9, 1967.

Herbert F. Stride, Chicago, for appellant.

Matthews, Jordan, Dean & Suhler, Aurora, for appellee.

ABRAHAMSON, JUSTICE.

This is an appeal from an order entered by the trial court on March 18, 1966, that dismissed plaintiff's complaint and is concerned primarily with the problems of practice.

On March 9, 1962, the plaintiff, Esther Casillas, then a minor of the age of six years, was struck by an automobile operated by the defendant, Orville Rosengren, in the City of Chicago, and injured. Suit was filed shortly thereafter on her behalf by her mother and next friend to seek recovery for her damages in the Circuit Court of Kane County and docketed as case No. 62--1188. The defendant, Rosengren, through his attorney, duly filed his appearance and answer in that cause. On March 13, 1964, the trial court on its own motion, entered an order that dismissed the case for want of prosecution with leave to reinstate within 90 days. This order was pursuant to Administrative Rule 4 of the Circuit Court of Kane County that provided as follows:

'On the first day of the first term in each year of this Court, there shall be a general call of the Docket, both law and Chancery on which call all cases remaining thereon, in which positive action has not been taken and no attempt made for trial or final disposition of the same during one year next preceding such call, may be dismissed at the cause of the Plaintiffs, with leave to reinstate on sufficient cause shown, within ninety (90) days.'

It is not clear whether the plaintiff had received written notice that the case would be called on March 13 or only notice by publication as provided by local rule. However, it is undisputed that no positive action had been taken in the proceedings for over one year prior to the dismissal or that the trial court had the power to enter the order.

On February 1, 1966, the plaintiff filed a petition under Section 72 of the Civil Practice Act (Ill.Rev.Stats., Chap. 110, Sec. 72) to vacate the order of March 13, 1964, which had dismissed the complaint. The affidavit and testimony offered in support of the petition alleged that it was not clear in 1964 if the peculiar injuries suffered by the plaintiff would develop into cancer and that the suit could not be prosecuted further until her condition would permit a reasonably accurate medical prognosis. Counsel for the plaintiff contended that for that reason they had acquiesced in the dismissal at the time it was entered by the court but that they now intended to proceed since they were able to determine that cancer would not, in all probability, occur. The defendant opposed the petition and argued that the plaintiff was not entitled to the relief of Section 72, and, at the conclusion of the hearing, the court denied the petition.

On March 1, 1966, the plaintiff filed a new suit in Kane County, docketed as Case 66--588, based on the same cause of action as the original case. The defendant countered with a motion to dismiss that recited the dismissal of the earlier cause in March of 1964 and the recent denial of the plaintiff's petition to vacate that dismissal. On March 18, 1966, the court entered its order that incorporated the records of Case 62-- 1188 as part of the new cause; found that the order of February 1, 1966, in the earlier case was 'determinative'; and dismissed the complaint.

The plaintiff then filed her third suit, again based on the same cause of action, in the Circuit Court of Cook County but that case was dismissed on October 17, 1966, on the basis that the order of March 18, 1966, of the Circuit Court of Kane County was binding on all other courts of like jurisdiction. Thereafter, plaintiff petitioned this court for, and we granted, leave to appeal from the order of March 18, 1966, under Section 76(1) of the Civil Practice Act and Appellate Court Rule 21 (Ill.Rev.Stats., Chap. 110, Sec. 201.21).

The defendant's motion to dismiss the second complaint and the comments of the trial court indicate that the dismissal was predicated on a concern for the effectiveness of Administrative Rule 4 of the Circuit Court of Kane County. The motion stated that it would be improper to 'circumvent' the rule by the filing of a subsequent suit based on the same cause of action and the trial judge said '* * * either these rules mean something to aid the Courts in the disposition of our cases or they don't mean anything * * *' and dismissed the complaint.

Clearly the trial court had the authority to dismiss the first complaint for want of prosecution. Most, if not all, trial courts have adopted administrative rules that provide for the dismissal of cases on the motion of the court after a certain period of time if no action has been taken in the case. It is obviously in the interest of justice and an orderly procedure of judicial administration that this be done to relieve court calendars from the weight of dormant litigation. A dismissal for want of prosecution, entered pursuant to such local rules, is a final, appealable order. Athletic Ass'n of University of Illinois v. Crawford, 43 Ill.App.2d 52, 55, 192 N.E.2d 556; Pettigrove v. Parro Const. Corp., 44 Ill.App.2d 421, 424, 194 N.E.2d 521.

However, a dismissal for want of prosecution is only an involuntary nonsuit and is not an adjudication of the merits of the case or in itself, a bar to a further suit on the same issues. Branom v. Miller, 25 Ill.App.2d 94, 96, 166 N.E.2d 123. If the further suit would be otherwise barred by the Statute of Limitations, Section 24 of...