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Aranda v. Hobart Mfg. Corp.

OPINION FILED MARCH 23, 1977.

ELOY J. ARANDA, APPELLANT,

v.

THE HOBART MANUFACTURING CORPORATION, APPELLEE.



Appeal from the Appellate Court for the First District; there heard on appeal from the Circuit Court of Cook County; the Hon. Nicholas J. Bua, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Eloy Aranda, brought suit in the circuit court of Cook County against defendant, Hobart Manufacturing Corporation, alleging that he was injured while operating a machine manufactured by defendant. Before service of summons, the suit, having been placed on the "no progress call," was dismissed for want of prosecution. After the running of the relevant statute of limitations, an identical action was filed pursuant to section 24 of the Limitations Act (Ill. Rev. Stat. 1973, ch. 83, par. 24a), and summons for this second suit was promptly served. The trial court, relying upon Supreme Court Rule 103(b) (58 Ill.2d R. 103(b)), dismissed the second suit. It did so because it felt that the length of time between the filing of the first suit and the service of summons in the second case showed a lack of diligence by plaintiff in obtaining service. This dismissal was affirmed by the appellate court (35 Ill. App.3d 902), and we granted plaintiff leave to appeal.

As an aid to understanding the history of this litigation, we include the following chronology of its significant events:

April 6, 1972 — Plaintiff was injured.

September 13, 1972 — Plaintiff filed suit against defendant. The record does not indicate that any summons was issued or placed for service at that time. (This date is erroneously given in the appellate court opinion as September 13, 1973.)

January 29, 1974 — The suit, having previously been placed on a no progress calendar, was dismissed for want of prosecution.

April 6, 1974 — The statute of limitations governing the cause of action expired.

May 21, 1974 — Alias summons was issued and placed for service.

June 4, 1974 — Alias summons served.

July 11, 1974 — Defendant moved to quash service of summons because the cause of action had been dismissed prior to issuance of alias summons and not reinstated.

July 12, 1974 — Plaintiff filed a second suit, and promptly had summons issued and placed for service. Service occurred on July 24, 1974. This suit was identical to the first, and alleged it was filed pursuant to section 24 of the Limitations Act (Ill. Rev. Stat. 1973, ch. 83, par. 24a), and that the previous suit had been dismissed for want of prosecution on January 29, 1974.

August 5, 1974 — Pursuant to defendant's motion, service of summons in the first (1972) case was quashed.

August 26, 1974 — Defendant moved to dismiss the second (1974) case, in accordance with ...


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