Reed v. Long
| Decision Date | 07 May 1970 |
| Docket Number | Gen. No. 11151 |
| Parties | Hattle M. REED, Plaintiff-Appellant, v. Marie LONG, as Administrator of the Estate of Harry Long, Deceased, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Elmo E. Koos, Peoria, for appellant.
Arthur D. Young, Lewistown, for appellee.
This is an appeal from an order striking the complaint for lack of jurisdiction of the subject matter. This action is a second suit filed regarding the same occurrence, the first having been dismissed for want of prosecution. Plaintiff argues that despite the fact that the statute of limitations had expired at the time of the filing of this suit, the action was brought within one year of the dismissal of the first action under the authority of Ch. 83, § 24a, Ill.Rev.Stat.1965.
The occurrence upon which the suits were based happened on July 15, 1962. The complaint in the first suit was filed on June 12, 1964, and the defendant, Harry Long, filed his answer and later died on October 12, 1964. On December 21, 1964, plaintiff's attorney suggested defendant's death and on motion leave was granted to substitute a new party defendant. However, a new party was not thereafter substituted in that suit. On December 10, 1965, a rule was entered on the plaintiff to show cause why that suit should not be dismissed for want of prosecution, and on January 18, 1966, the rule was enforced and the suit was dismissed. On December 12, 1966, the second suit, being the suit here under consideration, was filed again naming Harry Long as the defendant and the summons that had been issued was returned on December 14, 1966, showing 'Defendant is deceased as of October 23, 1964'. On October 18, 1968, plaintiff filed a motion to substitute Marie Long as Administrator of the Estate of Harry Long as a party defendant, stating in said motion that Harry Long had died October 12, 1964, and that Marie Long had been appointed administrator of his estate on October 16, 1968. The motion to substitute the party was allowed on the day it was filed and summons was issued and returned showing service on the defendant, Marie Long, on October 26, 1968. Thereafter, on November 25, 1968, the defendant filed her special appearance and moved the court to strike the complaint for lack of jurisdiction of the subject matter. On February 18, 1969, that motion was allowed and the court dismissed the complaint.
The appellee, in her brief, raises the question whether the filing of a suit against a deceased person invoked the jurisdiction of the court. This question is determinative of this litigation.
Although the cause of action could have been timely brought against an administrator of Harry Long's estate under present day statutes, it is basic that at common law the action against Harry Long abated upon his death. 1 Am.Jur.2d, Abatement, Survival & Revival, § 47. The...
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Vaughn v. Speaker
...label the initial suit a "nullity" (see Wells v. Lueber (1976), 43 Ill.App.3d 973, 3 Ill.Dec. 126, 358 N.E.2d 293; Reed v. Long (1970), 122 Ill.App.2d 295, 259 N.E.2d 411) would be to answer this question in the negative without explanation. We must instead first examine certain Code provis......
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...an action cannot be brought by a decedent (see, e. g., Bavel v. Cavaness (1973), 12 Ill.App.3d 633, 299 N.E.2d 435; Reed v. Long (1970), 122 Ill.App.2d 295, 259 N.E.2d 411), and a creditor of the decedent cannot act for the estate unless qualified as an administrator under the Probate Act (......
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Marcus v. Art Nissen and Son, Inc.
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