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Ray v. Bokorney

MAY 18, 1971.

BELVA RAY, PLAINTIFF-APPELLANT,

v.

FRED BOKORNEY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. ABRAHAM W. BRUSSELL, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order dismissing plaintiff's complaint with prejudice.

On February 25, 1966, plaintiff filed a lawsuit four days short of the applicable statute of limitations seeking damages for personal injuries she sustained on defendant's property on February 29, 1964. A summons was issued but never served upon defendant. On March 12, 1969, three years later, plaintiff's suit was dismissed for want of prosecution. Immediately thereafter, on March 14, 1969, a subpoena was issued in the case, which had not been reinstated, requiring Burton Katz, manager of the real estate, to disclose the identity and location of the owner, Fred Bokorney. Ten days later, on March 24, 1969, plaintiff filed another action pursuant to Ill. Rev. Stat. (1967) ch. 83 par. 24a *fn1 and served defendant at his address in the State of Minnesota.

In lieu of an answer, defendant filed a motion to dismiss this second suit, contending that plaintiff failed to exercise diligence in obtaining service of summons in the initial suit, as required by Supreme Court Rule 103(b) (Ill. Rev. Stat. (1967) ch. 110A par. 103). *fn2 Affidavits of defendant and his real estate manager were filed in support of the motion. No counter-affidavits were filed by plaintiff. After a hearing, defendant's motion to dismiss was allowed and the suit was dismissed with prejudice.

Plaintiff contends that:

(1) Plaintiff was arbitrarily deprived of her rights which were conferred upon her by an Act of the Legislature being Chapter 83, Section 24a.[*]

(2) The order dismissing the initial suit was an exercise of judicial discretion which cannot be reviewed by collateral attack in the subsequent action.

Of academic interest, it is noted that the Supreme Court Rule 103(b) was amended, effective January 1, 1970, and presently reads:

"If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court's own motion."

OPINION

Plaintiff complains that she was arbitrarily deprived of her rights to maintain her cause of action and cites the following authorities in support of her contention: Casillas v. Rosengren, 86 Ill. App.2d 139; Sachs v. Ohio National Ins. Co., 131 F.2d 134; Patrick v. Burgess Norton Manufacturing Company, 56 Ill. App.2d 145; Boyce v. Snow, 187 Ill. 181; and Roth v. Northern Assurance Co., 32 Ill.2d 40.

In Casillas, supra, the plaintiff was a minor. The cause was dismissed pursuant to court rule for want of prosecution because plaintiff failed to attend a court call. Plaintiff filed a petition pursuant to sec. 72 of the Civil Practice Act (Ill. Rev. Stat. (1965) ch. 110, par. 72) to vacate the dismissal. This petition was denied and plaintiff then filed a new suit pursuant to sec. 24a, supra. This suit was also dismissed and plaintiff appealed.

This court noted at page 143:

"[I]t is not necessary for the plaintiff to rely on section 24 to commence the new action since, because of her minority, the time in which her suit might be brought has ...


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