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Roth v. Northern Assur. Co.

FEBRUARY 6, 1964.

LARRY ROTH D/B/A LARRY'S BARBEQUE, PLAINTIFF-APPELLANT,

v.

NORTHERN ASSURANCE COMPANY, LTD., A CORPORATION; CONTINENTAL INSURANCE COMPANY, A NEW YORK CORPORATION; PENNSYLVANIA FIRE INSURANCE COMPANY, A PENNSYLVANIA CORPORATION; THE TRAVELERS FIRE INSURANCE COMPANY, A CONNECTICUT CORPORATION; MINNEAPOLIS FIRE AND MARINE INSURANCE COMPANY, A MINNESOTA CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. HENRY W. DIERINGER, Judge, presiding. Judgment affirmed.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

Rehearing denied February 27, 1964.

This is an action to recover for a fire loss sustained by the plaintiff at his place of business on September 1, 1953. On August 30, 1954 the plaintiff filed suit in the United States District Court for the Northern District of Illinois, Eastern Division, against all of the defendant insurance companies which had insured the premises. The amount of each of the policies was as follows:

Northern Assurance Company, Ltd. ................ $1,500 Continental Insurance Company ................... 2,500 Pennsylvania Fire Insurance Company ............. 2,000 The Travelers Fire Insurance Company ............ 2,500 Minneapolis Fire and Marine Insurance Company ... 1,500

The total amount of coverage was $10,000, and plaintiff sought to recover that amount in his suit in the United States District Court.

The defendants filed a motion to dismiss on the grounds that although the amount in controversy exceeded $3,000 (a jurisdictional requirement at that time) the amount claimed against each defendant was less than $3,000, and the plaintiff could not aggregate the total claim against all of the defendants.

The District Court sustained the motion of the defendants and that suit was dismissed in the District Court and notice of said order was served upon the plaintiff on January 31, 1955. Thereupon, the plaintiff instituted suit against the same defendants in the Circuit Court of Cook County on February 1, 1955, based upon the same claim. The defendants filed an answer on February 21, 1955 and as a defense to the action set up the following provision which appeared in each of the policies sued upon:

"SUIT. No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all of the requirements of this policy shall have been complied with, and unless commenced within 12 months next after inception of the loss."

The plaintiff filed a reply setting forth the previous action in the United States District Court commenced within twelve months next after the inception of the loss, the motion of the defendants filed thereto, the order dismissing the case for lack of jurisdiction, which order was served upon the plaintiff on January 31, 1955, and the fact that this suit was filed in the Circuit Court of Cook County on February 1, 1955.

The plaintiff in his reply contended that under section 24(a), c 83 of the Ill Rev Stats 1955, having brought suit within one year after the dismissal order entered on January 28, 1955, he was entitled to maintain this suit.

On February 6, 1957, the defendants filed a motion for summary judgment on the ground that the plaintiff had not instituted his lawsuit within twelve months after inception of the loss, as provided for in the written contracts of insurance. This motion was denied by the then motion judge in the circuit court and the case remained on the calendar until April 6, 1962, when it was assigned to the trial judge for trial. At that time the defendants filed a motion to vacate the order of the motion judge denying their motion for summary judgment, and requested the court to enter a summary judgment for the defendants on the same grounds as previously set forth in their motion. The trial judge vacated the order of the motion judge and entered judgment for the defendants.

The question raised here is whether a plaintiff who has filed a suit to recover on fire insurance policies, within the limitation period provided for in the policies, and whose suit has been dismissed for want of jurisdiction after the limitation period had expired, may file a new action within one year after such dismissal under section 24 of the Limitations Act (c 83, § 24(a), Ill Rev Stats 1955).

The plaintiff, in support of his contention, cited the case of Sachs v. Ohio Nat. Life Ins. Co., 131 F.2d 134, which involved sec 24 of the Illinois Limitations Act. The court on page 137 said:

"In both common law non-suit and dismissal for want of jurisdiction, the order is due to some defect in the procedure or proof which prevents a trial on the merits. The obvious purpose of the statute was to give a plaintiff an opportunity to try the merits and it is illogical to assume that the legislature meant to prevent hardship in the case of a non-suit, but not in that of dismissal for want of jurisdiction. The contrary is clearly intimated in the only pertinent decisions; and by them we are bound. It follows that, as plaintiffs had commenced their new action within 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 non-suit as used in section 24(a), c 83, Ill Rev Stats 1959, and cited in support of that decision the case of Sachs v. Ohio Nat. Life Ins. Co., 131 F.2d 134.

The two foregoing cases are very forceful, but we are confronted with the case of Herb v. Pitcairn, 384 Ill. 237, 51 N.E.2d 277. In that case the plaintiff appealed from a judgment of the circuit court of Madison county sustaining the defendants' motion to ...


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