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Heizman v. City of Chicago

OCTOBER 21, 1974.

JEAN HEIZMAN, PLAINTIFF-APPELLANT,

v.

THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. MEL R. JIGANTI, Judge, presiding.

MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:

The plaintiff was injured on May 21, 1968, when, in getting out of a taxicab near the entrance to the Chicago Merchandise Mart, she struck her head on a beam projecting from the Wells Street bridge superstructure. Her original complaint, filed in 1969, was stricken and her case dismissed on March 17, 1972, for her failure and refusal to comply with a court order that she give her deposition on February 17, 1972. No appeal was ever taken from that order.

Instead, on January 21, 1973, she filed another complaint, identical with the first, except that it also set out said dismissal (which it alleged as for want of prosecution) and said refiling which, it alleged, was "within one year as provided by statutes." The defendant Cab Company, attaching a copy of the 1972 order, moved for a dismissal on the ground that the prior dismissal was entered as a sanction for the plaintiff's failure to give her discovery depositions and was a bar to the subsequent suit. The City of Chicago moved to dismiss on the same ground, plus that the action was not brought within 1 year after the action accrued, as provided in the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85, par. 8-101).

On February 14, 1973, the trial court dismissed the second suit on the ground that the earlier judgment constituted a bar to the bringing of the subsequent action, and this appeal followed.

The sole point raised by plaintiff is as follows:

"UPON DISMISSAL OF A COMPLAINT FOR FAILURE TO APPEAR FOR A DEPOSITION PLAINTIFF MAY REFILE THE COMPLAINT WITHIN ONE YEAR AND THE PRIOR DISMISSAL DOES NOT OPERATE AS A BAR TO THE REFILED COMPLAINT."

We disagree and affirm.

Supreme Court Rule 219(c)(v) (50 Ill.2d R. 219 (c)(v)), in pertinent parts, provides as follows:

"Rule 219. Consequences of Refusal to Comply with Rules or Order Relating to Discovery or Pretrial Conferences

(c) Failure to Comply with Order or Rules. If a party, or any person at the instance of or in collusion with a party, unreasonably refuses to comply with any provision of Rules 201 through 218, or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:

(v) that, as to claims or defenses asserted in any pleading to which that issue is material, a judgment by default be entered against the offending party or that his suit be dismissed with or without prejudice."

Supreme Court Rule 273 (50 Ill.2d R. 273) provides as follows:

"Rule 273. Effect of Involuntary Dismissal

Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an ...


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