Appeal from the Circuit Court of DuPage County, Eighteenth
Judicial Circuit; the Hon. WILLIAM C. ATTEN, Judge, presiding.
MR. PRESIDING JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
Rehearing denied March 15, 1967.
The plaintiff brought this suit as Conservator of the estate of Gilbert Baker, an incompetent, asking for judgment against the defendant, Roger Baker, individually and as Executor of the estate of Walter Baker, deceased, asserting that Roger Baker, with knowledge of the incompetency of his uncle, Gilbert Baker, violated certain duties owed by him because of his knowledge and of his position as Executor of the estate.
The duties allegedly owed by the defendant, and the factual background giving rise to this case, are fully reported in two prior appeals involving the same parties. (Pratt v. Baker, 65 Ill. App.2d 389, 212 N.E.2d 503 (1965); and Pratt v. Baker, 48 Ill. App.2d 442, 199 N.E.2d 307 (1964).) We will not repeat all of the allegations or the factual background.
The present complaint as amended, contains three counts: the first count being on the executor's bond; the second, sounding in tort; and the third being based upon fraud. All of the counts were based upon the breach of the same alleged duties which were made the basis of the second suit reported in 65 Ill. App.2d 389, 212 N.E.2d 503. The plaintiff relies upon the same facts for recovery in this suit as he did in the second suit, with some of the allegations being more detailed. Two additional theories the tort and fraud were added to this suit as further grounds upon which these facts entitled plaintiff to recover. The second suit was also against the defendant in his individual capacity, as well as executor, and was based upon the executor's bond.
The defendant moved to dismiss the present suit on the ground that it is barred under the doctrine of res judicata by the judgment in the second suit. The trial court agreed and dismissed the suit. The plaintiff contends that the second suit was not a decision on the merits and, thus, res judicata is not applicable. A major portion of plaintiff's brief is devoted to the merits of his case. In view of our decision on the res judicata issue, we do not again consider the merits.
In the second suit, the trial court granted defendant's motion to dismiss the amended complaint. The amended complaint in that suit, and in the present suit, contained the same allegations as to the acts and omissions which allegedly gave rise to plaintiff's cause of action. The same trial court judge presided over both suits. As indicated in the opinion of the trial court in this case, the motion to dismiss in the second case was granted on the grounds that there was failure to state a cause of action as a matter of law. Thereafter the plaintiff failed to plead over, and elected to stand on his amended complaint.
Judgment was entered herein prior to January 1, 1967, the effective date of Supreme Court Rule 273. Under the law at the time of the judgment herein, a motion to dismiss could be based on a technical deficiency in a pleading, and in such case, a dismissal would not be a bar to another suit for the same cause. Lurie v. Rupe, 51 Ill. App.2d 164, 176, 177, 201 N.E.2d 158 (1964); Cheevers v. Stone, 10 Ill. App.2d 39, 44, 134 N.E.2d 32 (1956).
[3-5] The law also provides that a prior judgment for the defendant on the ground of the nonexistence of some fact essential to the plaintiff's cause of action, does not preclude the plaintiff from maintaining an action after such fact subsequently comes into existence. Such rule excepts from the application of res judicata, the premature action where time for performance by the defendant has not arrived, or where plaintiff has not performed a condition precedent to recovery. LaSalle Nat. Bank v. 222 East Chestnut St. Corp., 267 F.2d 247, 252 (CA 7th, 1959); Restatement, Judgments, § 54 (1942). In order for a dismissal to be a bar to a subsequent suit, a prior judgment must have been rendered on the merits. Life Printing & Publishing Co., Inc. v. Marshall Field, III, 327 Ill. App. 486, 489, 64 N.E.2d 383 (1946).
The motion to dismiss filed in the second suit challenged the legal sufficiency of the allegations against the defendant as a matter of law, upon the following grounds:
"(a) The amended complaint does not state a claim upon which relief can be granted;
"(b) The law does not impose upon the defendant the duties plaintiff seeks to impose upon him;
"(c) The amended complaint (supposing that defendant knew that Gilbert was incompetent, and despite that knowledge failed to take action in accordance with that knowledge) fails to allege that defendant had any experience in the matter of determining the state of one's mental health;
"(d) The plaintiff's claim predicated on three promissory notes, dated 1922, 1923 and 1924, is barred by the 10 year statute of limitations, Ill Rev Stats 1963, chap 83, sec 17; the claim based on farm labor performed from 1930-1949, now in effect seeks indirectly to recover on the claim for wages which is barred by the five-year statute of limitations, Ill Rev Stats 1963, chap 83, sec 16. Since neither of these claims is valid, plaintiff has no cause of action, irrespective of whether defendant had the duties plaintiff says he had."
Such motion did not contest the facts set forth in the complaint. Rather, it disputed the plaintiff's right, as a matter of law, to recover upon the facts stated. It was immaterial whether the facts upon which the trial court based its determination were proven by evidence upon issue joined or admitted by a motion to dismiss. In either case it was a trial on the merits. Elston-Damen Currency Exchange, Inc. v. Sheon, 46 Ill. App.2d 218, 222, 197 N.E.2d 143 (1964); Life Printing & Publishing Co., Inc. v. Marshall Field, supra, 490. Under the pleadings, plaintiff's basis for recovery became, and was, an issue of law. Following his election to stand on his complaint, the ...