Sager Glove Corp. v. Continental Cas. Co.

• Decision Date: 17 October 1962
• Docket Number: Gen. No. 11608
• Citation: 37 Ill.App.2d 295,185 N.E.2d 473
• Parties: SAGER GLOVE CORPORATION, an Illinois corporation, Appellant, v. CONTINENTAL CASUALTY COMPANY, an Illinois corporation, Appellee.
• Court: United States Appellate Court of Illinois

Page 473

185 N.E.2d 473

37 Ill.App.2d 295

SAGER GLOVE CORPORATION, an Illinois corporation, Appellant, v. CONTINENTAL CASUALTY COMPANY, an Illinois corporation, Appellee.

Gen. No. 11608.

Appellate Court of Illinois, Second District, Second Division.

Oct. 17, 1962.

William C. Wines, Richard C. Yocom, Chicago, for appellant.

Cecil E. Magid, Chicago, for appellee.

SPIVEY, Justice.

The instant action is a suit on fidelity bonds issued by the defendant. An appeal was taken from a judgment of the Circuit Court of Kane County, which order dismissed the plaintiff's complaint on a motion to dismiss supported by affidavit.

Originally, a suit on the fidelity bonds was filed in the Superior Court of Cook County. This original suit was dismissed upon a finding that plaintiff repeatedly failed to comply with the order of the Superior Court of Cook County to produce records and to submit its president for depositions. The suit was dismissed on December 2, 1957. Thereafter, a motion to vacate the order of dismissal was filed on December 13, 1957, the motion was denied. A second motion to vacate the dismissal was filed and denied on January 14, 1958. On February 7, 1958, notice of appeal to the Appellate Court for the First District was filed and subsequently an appeal was duly taken and the judgment of the Superior Court affirmed on December 23, 1958. Sager Glove Corp. v. Continental Casualty Co., 19 Ill.App.2d 568, 154 N.E.2d 833. Rehearing was denied on January 13, 1959, and leave to appeal to the Supreme Court was denied on May 20, 1959.

Thereafter, on February 1, 1960, this suit was filed in Kane County. The complaint as amended, alleged the same cause of action as in the first suit and alleged also that it was brought 'pursuant to Section 24(a) of Chapter 83, of the Illinois Revised Statutes.'

Plaintiff relies upon Section 24a of the Limitations Act, which provided that,

'In any of the actions specified in any of the sections of this act or any other act or in any contract where the time of commencement of any action is limited, if judgment shall be given for the plaintiff, and the same be reversed by writ of error, or upon appeal; or if a verdict pass for the plaintiff, and, upon matter alleged in arrest of judgment, the judgment be given against the plaintiff; or, if the plaintiff has heretofore been nonsuited or shall be nonsuited, then, if the time limited for bringing such action shall have expired during the pendency of such suit, the said plaintiff, his or her heirs, executors, or administrators, as the case shall require, may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after.' (Emphasis ours.) (Ill.Rev.Stat.1959, Chap. 83, par. 24a.)

At the time the original suit was dismissed on December 2, 1957, the statute did not contain the following language, 'or in any contract where the time of commencement of any action is limited.' This language was added in 1959, but prior to the filing of the second suit on February 1, 1960. Plaintiff claims that the 1959 amendment is applicable to the instant case even though it was not in effect when the suit was dismissed, and it is agreed by the parties that without the language added by the 1959 amendment, the statute could not afford the plaintiff any relief in the instant situation.

Attached to the complaint was the fidelity bond which provided that any suit on the bond must be commenced within fifteen months after discovery of any fraudulent or dishonest act on the part of any employee of the insured. It is agreed that the dishonesty was discovered on July 16, 1953, and that the limitation of the policy was operative except for the claimed exception of the statute cited.

Defendant in its motion to dismiss the complaint contends (1) that the judgment of the original action is res judicata of the issues and (2) even if the first judgment was not res judicata the second suit was not filed within one year after the judgment in the first action, and thus plaintiff has failed to bring itself within the conditions of the statute. As against these contentions, the plaintiff contends that the year does not begin to run until the exhaustion of all its rights of appeal, and contends that the judgment of the Superior Court of Cook County was a non suit and not res judicata.

After dismissal by the Circuit Court of Kane County, the plaintiff took an appeal to the Supreme Court of Illinois, and to support an appeal to that Court, claimed that the trial court's order found that the above cited statute as amended in 1959 impaired defendant's obligation of contract and that the statute was unconstitutional. On January 8, 1962, the Supreme Court in an order found that the cause had been wrongfully appealed to that court and ordered the cause to be transferred to this court.

In order for the plaintiff to prevail in this litigation, it is essential that this Court find that this suit was filed within one year after judgment was given against the plaintiff. Failing in this, a discussion of the other issues raised would serve no purpose. We have concluded that the suit was not refiled in time and that the judgment of the Circuit Court of Kane County should be affirmed.

According to the language of the statute, there are two times when a new action can be filed within a year. One instance is where there is a reversal of a judgment against the plaintiff. Such is not the case here, for here, the appeal resulted in an affirmance of the judgment for the defendant.

The other time when a suit may be refiled within a year is after judgment is given against the plaintiff. The statute specifically refers to a judgment given against the plaintiff rather than an affirmance of a judgment against the plaintiff. Plaintiff would have us construe the statute which states '* * * judgment given against the plaintiff' to mean '* * * judgment affirmed against the plaintiff.' The language used by the legislature is clear and does not admit of construction. There is no ambiguity present and construction would not be proper. Streator Tp. High School Dist. No. 40 v. County Board, 14 Ill.App.2d 251, 144 N.E.2d 531; Fairfield Savings & Loan Ass'n v. Central National Bank, 19 Ill.App.2d 465, 154 N.E.2d 333.

In the event the judgment of the Superior Court against the plaintiff was reversed then it seems clear that the plaintiff would have another year in which to commence a new action. However, where there is an affirmance there is no language to indicate a legislative intent to extend more time than a year from the entry of the judgment.

In order to reach the conclusion that this suit was timely refiled, we must find that by taking an appeal from the first judgment, the running of the limitations act was delayed by the plaintiff's appeals. Such a conclusion is not indicated by the plain meaning of the statute, nor do we find judicial support for this contention, in the reports of this state.

Assuming only that the plaintiff was entitled to the benefit of the statute, the statute was obviously one of limitation. The appeal taken by the plaintiff in the original action did not extend the time in which the new suit should have been filed. 'The Illinois courts have held that the mere pendency of an appeal does not postpone the commencement date of the statute of limitations.' Geisler v. Benken, 328 Ill.App. 357, 361, 66 N.E.2d 313; Fairfield Savings & Loan Ass'n v. Central National Bank, 19 Ill.App.2d 465, 154 N.E.2d 333.

The instant factual situation is different from the circumstances the courts will most frequently meet in the application of this statute. In the usual case, the action will have been dismissed after the effective...