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Cook v. Britt

NOVEMBER 15, 1972.

RUTH P. COOK, PLAINTIFF-APPELLANT,

v.

W.B. BRITT, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM V. DALY, Judge, presiding.

MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:

On June 16, 1961, in Atlanta, Georgia, plaintiff Ruth P. Cook, while driving her automobile stopped it at a stop sign. Her vehicle was then struck in the rear by the defendant, W.G. Britt, a resident of Fulton County, Georgia, at the time. Plaintiff filed her suit on September 14, 1962, in Fulton, Georgia. In the meantime defendant moved to Wilmette, Illinois and still resides there. A copy of the complaint and process was served on the Georgia Secretary of State who on September 25, 1962, served the defendant by registered mail at his Wilmette, Illinois address. The registry receipt was returned by the Secretary of State showing receipt by the defendant on September 27, 1962.

On October 22, 1962, defendant filed three pleadings in the case in Fulton County, Georgia:

(1) Plea in abatement denying that he was legally served with process.

(2) Plea to the jurisdiction in which he challenged the constitutionality of the Georgia Statute which authorized service of process upon him by serving the Georgia Secretary of State.

(3) A traverse of entry service in which he again challenged the constitutionality of the Georgia Statute authorizing service of process and asked that the entry of service be vacated and set aside.

At the time plaintiff commenced suit, the Georgia Motor Vehicle Code provided for service of process on non-residents by service on the Secretary of State. In June 1964, the Supreme Court of Georgia held said Statute unconstitutional. (Young v. Morrison, 220 Ga. 127, 137 S.E.2d 456.) On October 14, 1964, defendant moved for summary judgment on the pleadings and on January 28, 1965, an order was entered in Fulton County, vacating the service, abating the cause, discharging the defendant and dismissing the suit.

On April 20, 1965, plaintiff filed suit in the Circuit Court of Cook County for damages for personal injury based on the same accident alleged in the Georgia law suit. Defendant was served with summons and filed a motion to dismiss for the reason that the suit was barred by the statute of limitations which motion was denied by the motions judge.

Defendant in his answer reasserted the defense of the statute of limitations and again claimed that allowing this suit to stand would deprive him of his constitutional right to due process of law. The trial judge, considering only the legal issues raised by the pleadings, dismissed the suit for the reason that it was barred by the statute of limitations.

The question on appeal is whether an action filed in a foreign jurisdiction, which was dismissed not on the merits but because of a defect in procedure, can be refiled in Illinois pursuant to Section 24a of the Illinois Limitations Act. Ill. Rev. Stat. 1965, ch. 83, sec. 24a.

• 1 It is generally agreed that a statute of limitations is an act limiting the time within which legal action shall be brought and affects the remedy only and not a substantive right. To avoid possible hardship which might result from strict adherence to the provisions of the statute of limitations, the Illinois Legislature adopted a remedial revival statute. It provides:

"In any of the actions specified in any of the sections of this act or any other act or in any contract where the time of commencement of any action is limited, if judgment shall be given for the plaintiff, and the same be reversed upon appeal; or if a verdict pass for the plaintiff, and, upon matter alleged in arrest of judgment, the judgment be given against the plaintiff; 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 plaintiff, his or her heirs, executors, or administrators, as the case shall require, may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after." Ill. Rev. Stat. 1965, ch. 83, sec. 24a.

Plaintiff-appellant relying on the provisions of said Illinois revival statute filed the instant suit within three months after the Georgia court discharged the defendant. Plaintiff maintains that she pursued her claim diligently since 1962 and that the defendant had knowledge of plaintiff's claim since that time.

In Geneva Construction Co. v. Martin Transfer & Storage Co., 4 Ill.2d 273, 122 N.E.2d 540, the Illinois Supreme ...


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