Keilholz v. Chicago & N. W. Ry. Co.
| Citation | 59 Ill.2d 34,319 N.E.2d 46 |
| Decision Date | 27 September 1974 |
| Docket Number | Nos. 45886,45888,s. 45886 |
| Parties | Margaret KEILHOLZ, Appellee, v. CHICAGO AND NORTH WESTERN RAILWAY COMPANY et al., Appellants. |
| Court | Illinois Supreme Court |
James P. Daley and Robert Schmiege, Chicago, for appellants Chicago and North Western Railway Co. and Earl R. Sniff.
McKenna, Storer, Rowe, White & Haskell, Chicago (John F. White and Howard K. Priess, II, Chicago, of counsel), for other appellants.
Tenney & Bentley and Kamin, Stanley & Balkin, Chicago (J. William Braithwaite John S. Eskilson, Frank C. Stanley, Jr. and F. James Helms, Chicago, of counsel), for appellee.
We granted leave to appeal in this case because it appeared to involve the inter-relationship of Rule 273 of this court and section 24 of the Limitations Act (Ill.Rev.Stat.1973, ch. 110A, par. 273; ch. 83 par. 24a). The rule relates to involuntary dismissals of actions, and it provides:
'Unless the order of dismissal or a statute of this state otherwise specifies, and involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join and indispensable party, operates as an adjudication upon the merits.' Ill.Rev.Stat.1973, ch. 110A, par. 273.
The statute deals with limitations, and more specifically, the time within which a plaintiff may commence a new action after his first action has been terminated. It provides:
'In the actions specified in this Act or any other act or contract where the time for commencing an action is limited, if judgment is given for the plaintiff but reversed on appeal; or if there is a verdict for the plaintiff and, upon matter alleged in arrest of judgment, the judgment is given against the plaintiff; or if the plaintiff is nonsuited or 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, his heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed or given against the plaintiff, or after the plaintiff is nonsuited or the action is dismissed for want of prosecution.' Ill.Rev.Stat.1973, ch. 83, par. 24a.
In her original complaint the plaintiff, Margaret Keilholz, sought to recover damages for injuries allegedly sustained in a collision between a truck and the train upon which she was a passenger. The defendants are the railroad company, its engineer and the owners and operators of the truck. The accident occurred on April 2, 1965, and the original complaint was instituted in 1967, within the normal two-year limitation period. A pretrial conference was had during the summer of 1969. On May 11, 1970, a second pretrial conference was set for July 7, 1970, and the plaintiff was ordered to appear in person at that time. On July 7 the plaintiff did not appear. Instead, on that date her attorney presented an affidavit stating that the plaintiff was away from the State of Illinois on a combined vacation and business trip. The trial judge entered the following order on July 8, 1970:
'It is therefore ordered, adjudged and decreed that this cause be and the same is hereby dismissed for non-compliance with Supreme Court Rules 218 and 219(c) and the order of this court entered on May 11, 1970.'
The plaintiff's motion to vacate the dismissal order of July 8, 1970, was denied. No appeal was taken from the order of dismissal or from the denial of the motion to vacate.
Instead, on December 15, 1970, the plaintiff commenced a new action, identical with the first. She did so in reliance upon section 24 of the Limitations Act. All the defendants moved to dimiss the new complaint and the complaint was dismissed. On appeal, the Appellate Court, First District, reversed the judgment dismissing the action, one judge dissenting. (10 Ill.App.3d 1087, 295 N.E.2d 561.) Two petitions for leave to appeal were filed. Both were allowed, and the two cases were consolidated.
Of the four types of orders described in section 24, three are plainly inapplicable. This case does not involve a judgment for the plaintiff reversed on appeal, nor was there a verdict for the plaintiff with judgment upon that verdict arrested. This case does not involve a nonsuit. It is also obvious that in any literal sense of the words, this case was not 'dismissed for want of prosecution.' It was dismissed because the plaintiff did not comply with the order of the court that she appear in person at the pretrial hearing.
The appellate court majority recognized that the order of July 8, 1970, is 'essentially based on 'non-compliance with * * * the order of...
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...case on the merits, and a dismissal for want of prosecution in Illinois is not a dismissal on the merits. Keilholz v. Chicago & Nw. Ry. Co., 59 Ill.2d 34, 319 N.E.2d 46, 47–48 (1974). For this reason, when an Illinois court dismisses a case for want of prosecution, as here, the dismissal ca......
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...for want of prosecution, but for lack of reasonable diligence to obtain service under Rule 103(b). In Keilholz v. Chicago and North Western Ry. Co. (1974), 59 Ill.2d 34, 319 N.E.2d 46, plaintiff's first action was dismissed, under Supreme Court Rules 218 and 219(c) ( Ill.Rev.Stat.1971, ch. ......
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