Swiontek v. Greenstein
| Citation | 33 Ill.App.2d 355,179 N.E.2d 427 |
| Decision Date | 05 December 1961 |
| Docket Number | Gen. No. 48320 |
| Parties | Steve SWIONTEK, Plaintiff-Appellant, v. Frank GREENSTEIN, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Herbert D. Jones, Jr., and Julius Marciniak, Chicago, Thomas William Burke, Chicago, of counsel, for appellant.
B. F. Martin and Frank Glazer, Chicago, of counsel, for appellee.
This is an appeal from a judgment dismissing plaintiff's personal injury action for the reason that it was not timely filed. The facts from which this action arose occurred on December 1, 1956, when plaintiff was allegedly struck by defendant's automobile in Cook County, Illinois. On November 28, 1958, plaintiff filed suit in the United States District Court for the Northern District of Illinois, basing jurisdiction on diversity of citizenship. Plaintiff was a citizen of Illinois and believed defendant to be a citizen of Wisconsin. The District Court sustained defendant's contention that he was a citizen of Illinois and on December 29, 1958, dismissed the suit for lack of jurisdiction.
The present suit was filed in the state court on December 28, 1959. Defendant moved to dismiss the complaint on the grounds that the two year statute of limitations tolled the cause of action on December 2, 1958, and that Sec. 24a, Ch. 83, Ill.Rev.Stat.1959, is not applicable. Plaintiff relies on that statute for authority to extend the time for commencing a new action, and asserts that dismissal for want of jurisdiction is encompassed within the term nonsuit as used therein. The relevant portion of the statute reads:
'* * * 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 * * * may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after.'
Plaintiff's complaint averred that the lawsuit filed in the District Court involved 'the same parties herein and the same cause of action.' Defendant's motion to dismiss did not challenge the identity of this and the former lawsuit, and the lower court did not consider this to be in issue. However, the defendant attempts to raise new matter in this appeal by asserting that the identity of the two causes of action must appear from the record. The motion to dismiss, having failed to raise the point of the identity of this and the former lawsuit, constituted a waiver of the issue and it is not available to the defendant in this appeal. Ill.Rev.Stat.1959, ch. 110, §§ 42, 45. Clegg v. Gould, 314 Ill.App. 670, 42 N.E.2d 315.
The question of whether the term nonsuit in the Illniois statute includes a dismissal for want of jurisdiction was decided affirmatively in Sachs v. Ohio Nat. Life Ins. Co., 7 Cir., 131 F.2d 134, which reviewed the Illinois authorities, and the rationale of that case properly effectuates the legislative intent of giving the plaintiff an opportunity for a trial on the merits where he had suffered an involuntary dismissal. As stated in the Sachs case, at pages 136, 137:
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... ... (Third Swansea Properties, Inc. v. Ockerlund Construction Co. (1976), 41 Ill.App.3d 894, 354 N.E.2d 148; Swiontek v. Greenstein ... Page 443 ... [47 Ill.Dec. 438] (1961), 33 Ill.App.2d 355, 179 N.E.2d 427.) This is especially true when, as here, the ... ...
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Roth v. Northern Assur. Co.
...196 N.E.2d 389) and we granted leave to appeal to review an asserted conflict in appellate court decisions. See, Swiontek v. Greenstein, 33 Ill.App.2d 355, 179 N.E.2d 427; Lundstrom v. Winnebago Newspapers, Inc., 32 Ill.App.2d 266, 177 N.E.2d 643 (abst. The plaintiff's building was damaged ......
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Roth v. Northern Assur. Co.
...a year after the first one had been dismissed for want of jurisdiction, they were not barred.' In the case of Swiontek v. Greenstein, 33 Ill.App.2d 355, 179 N.E.2d 427, the court held that a dismissal for want of jurisdiction is within the meaning of the word nonsuit as used in section 24a,......
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