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Gillespie v. Norfolk & W. Ry. Co.

DECEMBER 19, 1968.

BARBARA GILLESPIE, ADMINISTRATRIX OF THE ESTATE OF MOSE CHILDERS, DECEASED, PLAINTIFF-APPELLANT,

v.

NORFOLK AND WESTERN RAILWAY COMPANY, A CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Macon County; the Hon. RODNEY A. SCOTT and the Hon. ALBERT G. WEBBER, III, Judges, presiding. Reversed and remanded.

TRAPP, J.

Plaintiff appeals from the order of the trial court dismissing her action for wrongful death and entering judgment for costs against her.

The issue is presented upon the refusal of the trial court to vacate a default judgment which had been entered pursuant to the failure of plaintiff to answer interrogatories within the 28 days prescribed by Rule 213 of the Supreme Court.

The facts may be taken to be true either because they are matters of record, are agreed upon, or are asserted by affidavit and not controverted.

The complaint was filed December 2, 1966. Motion to strike was filed January 5, 1967. Plaintiff's interrogatories to defendant were filed January 5, 1967. Objections to these interrogatories were filed February 1, 1967. On February 10, 1967, the court struck paragraph 5(a) of the complaint, sustained objections to interrogatory 17 and limited interrogatory 25 to occurrence witnesses. Defendant's answer was filed March 10, 1967. Defendant's answers to the interrogatories of plaintiff were filed March 17, 1967, which would be late by reason of being more than 28 days subsequent to the order on the objections.

On April 12, 1967, defendant mailed interrogatories to plaintiff's attorneys. On May 11, 1967, defendant's attorney wrote plaintiff's attorneys that he had not received the answers due May 10, 1967. Again, on May 19, 1967, defendant's attorney wrote plaintiff's attorneys that the answers were not received and added, "We hope you will not force us to ask the court to invoke sanctions." On May 23, 1967, plaintiff's attorneys wrote defendant's attorney: "The interrogatories are in the hands of plaintiff for signature, and we expect them back within a few days."

On May 29, 1967, defendant moved the court to dismiss plaintiff's complaint, "for the reason that plaintiff has refused to file answers to interrogatories propounded to the plaintiff by the defendant under Illinois Supreme Court Rule No. 213." The record does not show proof of service of this motion or the undated notice that the motion would be presented, but plaintiff's attorneys state that they received it after their letter of May 23, 1967, advising that the answers were forthcoming. Plaintiff's counsel filed an affidavit in opposition to the motion to dismiss on May 25, 1967, and included therein a copy of their letter to defendant's attorney that the answers were expected within a few days. The affidavit also asserted that defendant was not harmed by the delay. No counteraffidavit was filed.

The notice accompanying defendant's motion to dismiss employed only the language: ". . . the defendant will present the attached motion . . . May 29, 1967." Plaintiff's counsel did not appear at the time specified. Defendant's counsel presented its motion and notice, and the court made the following docket entry:

"And this cause comes on to be heard by the Court on the motion to dismiss, and there being no appearance by plaintiff's counsel, and by plaintiff's failure to appear, said motion presumed confessed and it is ordered and adjudged by the Court that said complaint, be, and it is hereby dismissed at the costs of plaintiff.

"It is therefore ordered and adjudged by the Court that the defendant, Norfolk and Western Railway Company, a Corporation, do have and recover of and from the plaintiff, Barbara Gillespie, Administratrix of the Estate of Mose Childers, Deceased, its costs and charges herein expended and have execution therefor."

No written order provided by Rule 271 of the Supreme Court was presented. It does not appear how plaintiff was advised of the order of dismissal. However, on June 20, 1967, plaintiff filed a motion supported by affidavit to vacate the order of dismissal and reinstate the cause. On the same day plaintiff filed the answers to defendant's interrogatories.

Plaintiff's attorneys' subsequent affidavit filed in connection with a motion and a supplemental motion asserts that defendant failed to follow a procedure of placing the motion for setting on a request docket. This is not controverted, and such it is stated, led counsel to believe the motion would not be heard on the date in the notice. The language of the notice is not inconsistent with such practice. The statement that this was counsel's belief is not controverted, but defendant's brief asserts that plaintiff's counsel was incorrect in their belief.

On June 14, 1967, the motion to vacate was heard by a Judge other than the one who ordered default. He indicated that he found no reason to disturb the May 29, 1967, order. At the request of plaintiff's counsel the matter was redirected to the Judge who entered default. The latter declined to hear the motion, and it was decided by the Judge to whom presented.

In considering whether the circumstances here set forth justified the remedy of dismissing plaintiff's suit for wrongful death we are confronted, to say the least, with a situation which tests the outer limits of that discretion which is, of necessity, vested in the trial courts to compel compliance with the rules. While the facts in this case are quite dissimilar at least as to the complexity of the subject matter of inquiry, nevertheless, we feel that certain principles set forth by the Supreme Court in People ex rel. General Motors Corp. v. Bua, 37 Ill.2d 180, 226 N.E.2d 6 (1967), afford us some light. In that case, 226 N.E.2d 6, at page 14, the Court, referring to the power of the trial court ...


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