APPEAL from the Circuit Court of Cook County; the Hon. MEL R.
JIGANTI, Judge, presiding.
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
Roy Meyer brought an action in November, 1969, as the duly appointed administrator of the estate of Terry Meyer, a deceased minor, against John Wardrop and certain other defendants. The action arises as a result of an accident in which John Wardrop allegedly drove his automobile onto a grass parkway at or near 1107 Pfingston Road in Northfield Township striking and killing Terry Meyer. Count I and Count II of the plaintiff's complaint alleged that John Wardrop, the Wilson Leasing Company, and Sang, Wardrop, and Walloway, a partnership, were liable on the basis of ordinary negligence and willful and wanton conduct under the Wrongful Death Act. (Ill. Rev. Stat. 1967, ch. 70, pars. 1 and 2.) Count III of the complaint was a dram shop action directed against six other defendants. On June 6, 1973, Count III was dismissed for plaintiff's failure to state a cause of action. On December 16, 1974, Count I and Count II were dismissed on the ground that plaintiff failed to exercise reasonable diligence in obtaining service of summons on John Wardrop pursuant to Supreme Court Rule 103(b) which provides:
"Dismissal for Lack of Diligence. 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." Ill. Rev. Stat. 1973, ch. 110A, par. 103(b).
Plaintiff appeals the December 16, 1974, order contending that the trial court's ruling constituted an abuse of discretion. The pertinent facts are set forth in the following chronology.
November 20, 1968 Terry Meyer, a minor, was struck and killed by an automobile driven by John Wardrop at or near 1107 Pfingston Road in Northfield Township.
November 20, 1969 Plaintiff filed an action pursuant to the Wrongful Death Act and the Dram Shop Act. This cause was assigned circuit court of Cook County No. 69 L 17012. We will refer to it as the 1969 action.
November 25, 1969 Summons directed to John Wardrop and all other defendants was issued for service.
December 22, 1969 The summons directed to John Wardrop as a member of the partnership of Sang, Wardrop and Walloway located at 1317 Pfingston Road, Glenview, was returned "not found." A notice attached to the returned summons indicated that the partnership had moved from its Glenview address.
June 6, 1973 Judge Crosson issued two separate and distinct orders relating to plaintiff's 1969 action. One order dismissed the defendants cited in the dram shop count of plaintiff's complaint on the ground that the plaintiff failed to state a cause of action. No appeal was taken on the dismissal of the dram shop count. The other order dismissed the wrongful death action for want of prosecution. However, the Wilson Leasing Company was the only defendant specified in the dismissal order. Due to an erroneous omission, John Wardrop and the defendant partnership of which Wardrop was a member were not specified as dismissed defendants in the order. Plaintiff did not at any time attempt to reinstate the 1969 wrongful death action or vacate the order dismissing the action on the ground of its erroneous omission.
October 26, 1973 Plaintiff brought a second wrongful death action against John Wardrop as the sole defendant. The cause was assigned circuit court of Cook County No. 73 L 16401. We will refer to it as the 1973 action. The complaint of the 1973 action was, in substance, similar to the complaint filed in the 1969 action.
December 12, 1973 Defendant Wardrop was served with an alias summons and a copy of the complaint of the 1969 cause of action.
January 21, 1974 Defendant Wardrop filed an appearance in the 1973 action.
January 23, 1974 Defendant filed a motion to dismiss the 1973 action on the ground that the action was not filed within the two-year period after the death of the ...