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Aranda v. Hobart Manufacturing Corp.

OPINION FILED FEBRUARY 2, 1976.

ELOY J. ARANDA, PLAINTIFF-APPELLANT,

v.

THE HOBART MANUFACTURING CORPORATION, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. NICHOLAS J. BUA, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Eloy J. Aranda (plaintiff) brought suit against The Hobart Manufacturing Corporation (defendant) and another party. After dismissal for want of prosecution, another suit was filed in his behalf. In due course the trial court dismissed the second suit under Supreme Court Rule 103(b). (Ill. Rev. Stat. 1973, ch. 110A, R. 103(b).) Plaintiff appeals.

Plaintiff contends that the filing of his second action was permitted within the letter of the applicable provision of the limitations statute (Ill. Rev. Stat. 1973, ch. 83, par. 24a) and the filing of this cause of action was not violative of the spirit or intent of the statute. Defendant responds that, to obtain the benefits of the limitations statute, plaintiff was obliged to exercise diligence in prosecution of his cause of action and plaintiff had failed to exercise reasonable diligence in obtaining service of summons.

Ease in comprehension requires that the facts appearing of record be stated in date order as follows:

April 6, 1972 — Plaintiff was injured in his employment while operating a machine allegedly manufactured by defendant.

September 13, 1973 — Plaintiff filed suit to impose strict tort liability. This case was given circuit court of Cook County No. 72-L-12103. It will be referred to as the earlier case or as the 1972 case. It does not appear from the record whether any summons directed to defendant was then issued or placed for service.

January 29, 1974 — The case was called from a no progress calendar and was dismissed for want of prosecution.

May 21, 1974 — An alias summons directed to defendant was issued and placed for service.

June 4, 1974 — The alias summons was served on defendant.

July 11, 1974 — Defendant filed a motion to quash service and a special appearance on the ground that the cause of action had previously been dismissed and not reinstated.

July 12, 1974 — Plaintiff filed another suit against defendant upon the same cause of action. This suit was given circuit court of Cook County No. 74-L-11149. It will be referred to as the second suit or the 1974 suit. Summons was duly issued and placed for service.

August 5, 1974 — Defendant's motion to quash service of summons was allowed in the first (1972) case.

August 26, 1974 — Defendant filed an appearance and motion to dismiss the (1974) case.

August 26, 1974 — Defendant filed a motion to dismiss the second (1974) case for lack of diligence in serving summons in the former action until ...


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