Meyer v. Wardrop

• Decision Date: 29 March 1976
• Docket Number: No. 61502,61502
• Citation: 345 N.E.2d 762,37 Ill.App.3d 243
• Parties: Terry MEYER, etc., et al., Plaintiffs-Appellants, v. John C. WARDROP et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 762

345 N.E.2d 762

37 Ill.App.3d 243

Terry MEYER, etc., et al., Plaintiffs-Appellants, v. John C. WARDROP et al., Defendants-Appellees.

No. 61502.

Appellate Court of Illinois, First District, First Division.

March 29, 1976.

Lane, Falasz, Pollman & Munday, Chicago (Thomas L. Trinley, Chicago, of counsel), for plaintiffs-appellants.

Kirkland & Ellis, Chicago (James E. Dahl, Chicago, of counsel), for defendants-appellees.

BURKE, Justice.

Roy Meyer brought an action in November, 1969, as the duly appointed administrator of the estate of Terry Meyer, a deceased minor, against John Wardrop and certain other defendants. The action arises as a result of an accident in which John Wardrop allegedly drove his automobile onto a grass parkway at or near 1107 Pfingston Road in Northfield Township striking and killing Terry Meyer. Count I and Count II of the plaintiff's complaint alleged that John Wardrop, the Wilson Leasing Company, and Sang, Wardrop and Walloway, a partnership, were liable on the basis of ordinary negligence and willful and wanton conduct under the Wrongful Death Act. (Ill.Rev.Stat.1967, ch. 70, pars. 1 and 2.) Count III of the complaint was a dram shop action directed against six other defendants. On June 6, 1973, Count III was dismissed for plaintiff's failure to state a cause of action. On December 16, 1974, Count I and Count II were dismissed on the ground that plaintiff failed to exercise reasonable diligence in obtaining service of summons on John Wardrop pursuant to Supreme Court Rule 103(b) which provides:

'Dismissal for Lack of Diligence. If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court's own motion.' Ill.Rev.Stat.1973, ch. 110A, par. 103(b).

Plaintiff appeals the December 16, 1974 order contending that the trial court's ruling constituted an abuse of discretion. The pertinent facts are set forth in the following chronology.

November 20, 1968--Terry Meyer, a minor, was struck and killed by an automobile driven by John Wardrop at or near 1107 Pfingston Road in Northfield Township.

November 20, 1969--Plaintiff filed an action pursuant to the Wrongful Death Act and the Dram Shop Act. This cause was assigned circuit court of Cook County No. 69 L. 17012. We will refer to it as the 1969 action.

November 25, 1969--Summons directed to John Wardrop and all other defendants was issued for service.

December 22, 1969--The summons directed to John Wardrop as a member of the partnership of Sang, Wardrop and Walloway located at 1317 Pfingston Road, Glenview, was returned 'not found.' A notice attached to the returned summons indicated that the partnership had moved from its Glenview address.

June 6, 1973--Judge Crosson issued two separate and distinct orders relating to plaintiff's 1969 action. One order dismissed the defendants cited in the dram shop count of plaintiff's complaint on the ground that the plaintiff failed to state a cause of action. No appeal was taken on the dismissal of the dram shop count. The other order dismissed the wrongful death action for want of prosecution. However, the Wilson Leasing Company was the only defendant specified in the dismissal order. Due to an erroneous omission, John Wardrop and the defendant partnership of which Wardrop was a member were not specified as dismissed defendants in the order. Plaintiff did not at any time attempt to reinstate the 1969 wrongful death action or vacate the order dismissing the action on the ground of its erroneous omission.

October 26, 1973--Plaintiff brought a second wrongful death action against John Wardrop as the sole defendant. The cause was assigned circuit court of Cook County No. 73 L. 16401. We will refer to it as the 1973 action. The complaint of the 1973 action was, in substance, similar to the complaint filed in the 1969 action.

December 12, 1973--Defendant Wardrop was served with an alias summons and a copy of the complaint of the 1969 cause of action.

January 21, 1974--Defendant Wardrop filed an appearance in the 1973 action.

January 23, 1974--Defendant filed a motion to dismiss the 1973 action on the ground that the action was not filed within the two-year period after the death of the deceased as prescribed by the Wrongful Death Act.

September 10, 1974--Defendant was served with summons and a copy of the complaint of the 1973 cause of action.

September 30, 1974--The 1973 action was dismissed for plaintiff's failure to bring the action within the two-year period prescribed by the Wrongful Death Act.

November 6, 1974--Plaintiff filed a motion for an order of default against defendant Wardrop in the 1969 action. The motion alleged that defendant had not filed an appearance or an answer in response to an alias summons served on him on December 12, 1973.

November 13, 1974--An order was issued that vacated any and all defaults against the defendant, granted leave to the defendant to file his appearance instanter in the 1969 action, and allowed defendant an extention of time in which to answer the complaint in the 1969 action.

November 27, 1974--Defendant submitted a motion to dismiss the complaint in the 1969 action on the ground of plaintiff's failure to exercise reasonable diligence in obtaining service on defendant. Included with the motion was a transcript of defendant's deposition taken June 18, 1974. The deposition reveals that defendant moved from his Glenview home to the Chicago Athletic Club approximately three months after the November, 1968 accident. Defendant maintained a mailing address at the Chicago Athletic Club as his place of residence for approximately one year. He thereafter lived in a townhouse located in Northfield for approximately one and one-half years before moving to his present home in Northfield. Since November, 1968, defendant has always been a resident of Illinois. Although the partnership of Sang, Wardrop, and Walloway had dissolved after November, 1968, defendant has always been employed as an advertising agent in the Chicago area.

December 12, 1974--After a hearing, plaintiff's 1969 action was dismissed on the ground that plaintiff failed to exercise reasonable diligence in obtaining service of summons on defendant pursuant to Supreme Court Rule 103(b). Both parties stipulated to a report of proceeding with an agreed statement of the facts.

It is widely recognized that Supreme Court Rule 103(b) supplements the purpose of various statutes of limitations. (Karpiel v. LaSalle Nat. Bank of Chicago, 119 Ill.App.2d 157, 255 N.E.2d 61.) Limitation statutes reflect this state's public policy that defendants are to be afforded a fair opportunity to investigate the circumstances upon which liability against them is predicated while witnesses and facts are accessible. (Geneva Const. Co. v. Martin Trans. Co., 4 Ill.2d 273, 122 N.E.2d 540.) Rule 103(b) operates to protect defendants from stale claims due to an inordinate delay in the issuance of summons after an action has been filed within the limitation period. Kohlhaas v. Morse, 36 Ill.App.2d 158, 183 N.E.2d 16; Phifer v. Hayes, 20 Ill.App.3d 635, 314 N.E.2d 473.

The case before us illustrates the type of situation contemplated by rule 103(b). Defendant did not receive the first alias summons placed for service by plaintiff for the 1969 action until December 12, 1973. More than three years have passed since the...