Franzese v. Trinko, No. 48625

• Court: Supreme Court of Illinois
• Writing for the Court: GOLDENHERSH
• Citation: 66 Ill.2d 136,5 Ill.Dec. 262,361 N.E.2d 585
• Docket Number: No. 48625
• Decision Date: 23 March 1977
• Parties: , 5 Ill.Dec. 262 Ronald Franzese, Appellant, v. Albert J. TRINKO, Appellee.

Page 585

361 N.E.2d 585 66 Ill.2d 136, 5 Ill.Dec. 262 Ronald Franzese, Appellant,
v.
Albert J. TRINKO, Appellee. No. 48625. Supreme Court of Illinois. March 23, 1977.

[66 Ill.2d 137] A. J. Hardiman, Chicago, for appellant.

Hall, Meyer, Fisher, Holmberg & Snook, Waukegan (Myron J. Hall, Waukegan, of counsel), for appellee.

GOLDENHERSH, Justice:

On May 1, 1972, plaintiff, Ronald Franzese, filed an action against defendant, Albert J. Trinko, in the circuit court of Lake County seeking to recover damages for personal injuries allegedly sustained on May 14, 1970. On November 21, 1973, the circuit court entered the following order: [5 Ill.Dec. 263]

Page 586

'Pursuant to Special Call of the Docket, On Court's own Motion, Cause dismissed for want of prosecution.' On October 31, 1974, plaintiff refiled the action. Defendant moved to dismiss, and the circuit court, finding 'That the Plaintiff herein has failed to act with diligence in refiling of this lawsuit, previously filed under case number 72 L 173, and that the actions of the Plaintiff fall within the exception of extreme and self-initiated delay to Section 24 of the Limitations Act, Chapter 83, Illinois Revised Statutes,' dismissed the suit. Plaintiff appealed, the appellate court affirmed (38 Ill.App.3d 152, 347 N.E.2d 844), and we allowed plaintiff's petition for leave to appeal.

Plaintiff contends that section 24 of 'An Act in regard to limitations' (Ill.Rev.Stat.1973, ch. 83, par. 24a) 'clearly and unqualifiedly gave the plaintiff this right to refile' within one year of the dismissal for want of prosecution. Citing a number of authorities (Sandman v. Marshall Field & Co., 27 Ill.App.3d 427, 326 N.E.2d 514; Brown v. Burdick, 16 Ill.App.3d 1071, 307 N.E.2d 409; Quirino v. Chicago Tribune-New York News Syndicate, Inc., 10 Ill.App.3d 148, 294 N.E.2d 29; Ray v. Bokorney, 133 Ill.App.2d 141, 272 N.E.2d 836; Tidwell v. Smith, 57 Ill.App.2d 271, 205 N.E.2d 484) defendant contends that the statute does not provide an absolute right to refile. He argues that it was not the legislative intent to create an absolute right to refile within one year, that to so interpret the statute would be contrary to its spirit and intent, and [66 Ill.2d 138] that when there exists a conflict between the letter and the spirit of a statute, the latter must prevail.

At the time in question section 24, in pertinent part, provided:

'In the actions specified in this Act * * * where the time for commencing an action is limited, if * * * the action is dismissed for want of prosecution then, whether or not the time limitation for bringing such action expires during the pendency of such suit, the plaintiff,...