Shroat v. Robins
| Decision Date | 22 August 1972 |
| Docket Number | No. 71--29,71--29 |
| Parties | Richard SHROAT, Plaintiff-Appellant, v. Pearl E. ROBINS and Cecilia Robins Prokopf, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Sprague, Sprague & Ysursa, Belleville, for plaintiff-appellant; Robert J. Sprague, Belleville, of counsel.
Carr & Raffaelle, East St. Louis, for defendants-appellees; Thomas Gumbel, East St. Louis, of counsel.
The appeal is considered on the pleadings with undisputed facts. On March 10, 1969 plaintiff filed a complaint in three counts, one for specific performance of a contract to convey real estate, another to set aside a deed allegedly made to defraud him of his contract rights, and, thirdly, for damages for breach of contract. On April 14, 1969 the defendants filed a motion to dismiss upon the grounds that the complaint was insufficient in law and its allegations of fact and accordingly failed to state a cause of action, and that the claim set forth in the complaint is unenforceable under the Statute of Frauds. On May 15, 1969, after a hearing, the court allowed the motion and dismissed the complaint with the following order:
Plaintiff did not file an amended complaint within the time limited by the order of dismissal nor did he seek an extension of that time. On November 5, 1969 plaintiff filed an amended complaint alleging substantially the same matters contained in his original complaint although with greater factual detail. Defendant filed a motion to strike the amended complaint on the grounds that it was filed without leave of court more than twenty days after the order of dismissal and that it was insufficient to state a cause of action. On November 25, 1969 the motion to dismiss was allowed and an order entered dismissing the amended complaint as follows:
It is this order which is the subject of this appeal.
We do not feel that the trial court erred in refusing to permit the plaintiff to file an amended complaint almost six months after the expiration of the time in which he was granted leave to so file. Chapter 7, section 1, Ill.Rev.Stat., Amendments and Jeofails Act provides:
'The court in which an action is pending shall have power to permit amendments in any process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment rendered therein.'
There is a similar provision in section 46 of the Civil Practice Act (Ill.Rev.Stat., 1969, ch. 110, sec. 46), which allows for amendments 'on just and reasonable terms * * *.' Plaintiff did not file an amended complaint within the twenty day period allotted by the order nor did he seek an extension of time. It is also noteworthy that plaintiff did not file any affidavit to excuse his extreme tardiness or make any attempt to show just cause for his failure to file his amended complaint within the time allowed. Plaintiff's contention that the court abused its discretion in dismissing his amended complaint is presented as bare argument. Its sole factual support is the obvious, unexplained and...
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