Green v. Wilmot Mountain, Inc.
Decision Date | 24 December 1980 |
Docket Number | No. 79-992,79-992 |
Citation | 47 Ill.Dec. 763,415 N.E.2d 1076,92 Ill.App.3d 176 |
Parties | , 47 Ill.Dec. 763 Mary Ann GREEN, Plaintiff-Appellee, v. WILMOT MOUNTAIN, INC. et al., Defendants-Appellants. |
Court | United States Appellate Court of Illinois |
Timothy J. Gillick, Pretzel, Stouffer, Nolan & Rooney, Chicago (Robert Marc Chemers, Joseph B. Lederleitner, Chicago, of counsel), for defendants-appellants.
Steinberg, Polacek & Goodman, Chicago (Wm. L. Barr, Jr., Kenneth W. Bley, Chicago, of counsel), for plaintiff-appellee.
This appeal involves the trial court's August 25, 1978 order dismissing plaintiff's 1976 personal injury action "for want of prosecution without prejudice." After plaintiff refiled her action pursuant to section 24 of the Limitations Act, Ill.Rev.Stat.1979, ch. 83, par. 24a, defendant Wilmot Mountain, Inc. moved for leave to appear in the original suit and to modify the August 25 dismissal order to read "with prejudice," so as to bar the refiled action. The court denied these motions and defendants 1 appeal. For reasons set forth, we affirm.
The chronology of events in the case follow January 4, 1975 Plaintiff injured in skiing accident on defendant Wilmot's ski slopes December 30, 1976 Complaint filed January 4, 1977 Statute of limitations expired January 17, 1977 Summons placed with Cook County Sheriff (no evidence of return in record) August 25, 1978 Complaint dismissed, without prejudice, for want of prosecution. September 5, 1978 Plaintiff refiled her complaint under section 24 of the Limitations Act. March 1, 1979 Wilmot moved for leave to file a special and limited appearance in the original suit and to amend the August 25 order. March 23, 1979 Wilmot sought leave to enter a general appearance and to amend the August 25 order.
Wilmot's motion alleged that it was never served with process; that more than three years after the injury occurred, the suit was dismissed without prejudice; that the August 25 dismissal order was erroneous because, under Supreme Court Rule 103(b) the motion judge could only dismiss the cause "with prejudice," and that the August 25 order must therefore be amended accordingly.
In opposition to Wilmot's contentions, plaintiff argues: (1) the August 25, 1978 order was a final order and the trial court consequently had no jurisdiction to hear defendants' motions because they were filed after the 30 day period provided by section 68.3 of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 68.3.); (2) the trial court cannot modify its order absent a memorandum which indicates the basis for the modification; (3) a summary modification of the order would contravene section 24 of the Limitations Act.
OPINIONInitially, we must confront the jurisdictional question raised by this appeal. As an alternative argument to our affirming the trial court's denial of defendants' motions to modify the August 25 order, plaintiff suggests that we have no jurisdiction over this appeal because defendants did not file their notice of appeal within thirty days after the entry of the August 25, 1978 order. (See Supreme Court Rule 303, Ill.Rev.Stat.1979, ch. 110A, par. 303.) Plaintiff supports this contention by asserting that the August 25 order was a final and appealable order and that the trial court lost jurisdiction to hear any further motions regarding the cause after thirty days. (See Ill.Rev.Stat.1977, ch. 110, par. 68.3.) Therefore, defendants' appeal from the denial of those March orders is, in effect, an improper collateral attack on the August 25 order. Hence, plaintiff argues, we also lack jurisdiction over the matter. Defendants, on the other hand, argue that the trial court retained its power to amend its records, even after thirty days, to conform them to the law. Additionally, defendants claim that the August 25 order as entered is void, which subjects it to collateral attack. Our threshold determination, therefore, is whether this cause is properly before us on appeal.
We agree with plaintiff that the August 25, 1978 order was final in the sense that plaintiff's 1976 lawsuit was terminated and the court lost jurisdiction, after thirty days, to entertain further motions to vacate or modify its order. (Ill.Rev.Stat.1977, ch. 110, par. 68.3; Watts v. Medusa Portland Cement Co. (1971), 132 Ill.App.2d 227, 268 N.E.2d 721; Athletic Ass'n of University v. Crawford (1963), 43 Ill.App.2d 52, 192 N.E.2d 556.) Therefore, defendants' March 1 and March 23 motions were not timely filed in the trial court. The court's subsequent denial of those motions would thus be proper on that basis. Noting that defendants filed their notice of appeal from those March orders on March 29, 1979 within the requisite thirty day period under Supreme Court Rule 303 we thus have jurisdiction to review the court's denial of those orders. We could simply affirm by assuming the court's denials of the motions to be predicated on the court's lack of jurisdiction. This result, of course, would obviate the need to discuss the merits of defendants' proposed construction of Supreme Court Rule 103(b).
We believe, however, that disposing of this case solely on this jurisdictional theory would be an overly facile way of avoiding the real issue in this case: Was the motion judge under a mandatory duty, under the circumstances of this case, to dismiss plaintiff's cause with prejudice for failure to exercise diligence in service of summons? If so, defendants should not be barred from seeking the appropriate relief, especially since they had no previous opportunity to raise the issue, not having been served with summons. Therefore, although we do not agree with defendants that the August 25 order is void, 2 we believe that defendants' motions should be treated as petitions for relief under section 72 of the Civil Practice Act, Ill.Rev.Stat.1977, ch. 110, par. 72. (See Werth Industries, Inc. v. Mid-America Mgt. Co. (1973), 16 Ill.App.3d 688, 306 N.E.2d 510.) The purpose of section 72 is to bring to the court's attention matters which, if known to the court at the time judgment was entered, would have prevented its rendition. (Mercantile All-In-One Loans, Inc. v. Menna (1978), 63 Ill.App.3d 931, 20 Ill.Dec. 735, 380 N.E.2d 944; Hall v. Hall (1973), 15 Ill.App.3d 599, 304 N.E.2d 763.) Under section 72 relief from judgments may be sought upon proper grounds within two years after the order or judgment is entered. In the pending case, defendants' motions alleged that the August 25 want of prosecution dismissal was in fact a mandatory dismissal with prejudice for lack of diligence in obtaining service. Accordingly, defendants' motions achieved the purpose of bringing to the court's attention defendants' position. Therefore, since the court implicitly rejected defendants' proposed application of Supreme Court Rule 103(b), Ill.Rev.Stat.1979, ch. 110A, par. 103(b), we will review the merits of the argument.
The rule provides, in pertinent part:
Defendants state that the trial court has the power to "reform its records to make them speak the truth, where there is a proper basis upon which to amend an order." In the pending case, defendants argue the court had no discretion to dismiss without prejudice because, under Rule 103(b), plaintiff failed to exercise reasonable diligence to obtain service after expiration of the statute of limitations. Since defendants apparently had no knowledge of the suit, they could not have moved for dismissal under Rule 103(b); consequently, defendants argue that the court was impelled to do so on its own motion.
Despite the ingenuity of defendants' theory, we reject the premise that the court was bound to dismiss plaintiff's action with prejudice, under Rule 103(b) on the August 25, 1978 "No Progress Call."
The order is unambiguous on its face and there is nothing in the record to contradict its presumptive validity. (See Amalgamated Trust & Savings Bank v. Conrad Kern Co., Inc. (1st Dist. 1975), 34 Ill.App.3d 430, 434, 340 N.E.2d 36.) To grant defendants' requested relief, therefore, we would have to determine that plaintiff's failure to serve defendants for more than 20 months after the expiration of the applicable statute of limitations was a per se lack of diligence under Rule 103(b). Because the record contains no report of the August 25 proceedings before the lower court, we cannot speculate as to what showing, if any, was made to support the dismissal without prejudice. However, it is reasonable to assume that, had the court determined that plaintiff had not exercised reasonable diligence it would have stated in its order that the dismissal was for that reason, under Rule 103(b). In that case the words "without prejudice" would be erroneous because of the expiration of the statute of limitations; the rule provides that such dismissals "shall be with prejudice."
Nevertheless, in the pending case the trial court did not make a finding of plaintiff's purported lack of diligence; rather, it dismissed the action for want of prosecution. This basis for dismissal is distinct from a 103(b) dismissal. (Wallace v. Smith (1st Dist. 1979), 75 Ill.App.3d 739, 745, 31 Ill.Dec. 463, 467, 394...
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