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Kutnick v. Grant

OCTOBER 8, 1975.

JOHN KUTNICK, PLAINTIFF-APPELLANT,

v.

JAMES B. GRANT, DEFENDANT-APPELLEE.



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

MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from an order dismissing with prejudice plaintiff's complaint for damages allegedly arising from an auto collision. He contends that the trial court erred in dismissing plaintiff's complaint which had been refiled under the provisions of section 24 of the Limitations Act. (Ill. Rev. Stat. 1973, ch. 83, par. 24a.) The pertinent history of the case follows:

November 10, 1965 — the collision occurred in which plaintiff was allegedly injured.

February 27, 1967 — plaintiff filed his original suit prior to the expiration of the two-year statute of limitations. (Ill. Rev. Stat. 1967, ch. 83, par. 15.)

June 13, 1972 — the cause was dismissed for want of prosecution by Judge Butler on the trial call.

June 23, 1972 — Judge Canel heard a pretrial conference.

June 28, 1972 — a second pretrial conference was held by Judge Canel.

July 7, 1972 — plaintiff's counsel noticed a motion before Judge Canel to vacate Judge Butler's dismissal. The record shows no disposition of that motion.

October 12, 1972 — another pretrial conference was held by Judge Canel.

November 15, 1972 — the case was set for trial on November 21, 1972, then continued to December 13, 1972, and continued for trial for certain on January 15, 1973.

January 15, 1973 — Judge Canel dismissed the case for want of prosecution.

July 6, 1973 — plaintiff refiled his suit under section 24 of the Limitations Act.

February 13, 1974 — Judge Brussell granted defendant's motion for a dismissal and dismissed plaintiff's action with prejudice.

Plaintiff contends that defendant is estopped from asserting June 13, 1972, as the date for computing the refiling period. Defendant moved to dismiss plaintiff's cause of action on the grounds of res judicata. The only reference in the record to June 13, 1972, as the date for computing the refiling period is a dismissal order of November 1, 1973, which order was vacated on January 14, 1974. The February 13, 1974, order makes no reference to June 13, 1972. From the actions of the court and the parties to this lawsuit, this court concludes that the date for computing the refiling period was January 15, 1973. Three pretrial conferences were held, a trial date was set, and two trial date continuances were granted by the court between June 13, 1972, and January 15, 1973. Defendant does not assert that June 13, 1972, is the critical date for computing the refiling period. We find the suit ...


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