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Sjostrom v. Mcmurray

OPINION FILED APRIL 21, 1977.

LEONARD E. SJOSTROM ET AL., D/B/A JOYCE BUILDERS, PLAINTIFFS-APPELLANTS,

v.

RONALD MCMURRAY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Kane County; the Hon. JOHN S. PAGE, Judge, presiding.

MR. JUSTICE SIEDENFELD DELIVERED THE OPINION OF THE COURT:

The plaintiffs filed a complaint for a mechanic's lien on July 3, 1975, alleging that defendants had defaulted in the amount of $4272.36 under a building contract. The defendants moved to dismiss alleging that the subject matter of the suit had been previously adjudicated by an order dismissing plaintiffs' complaint for a money judgment with prejudice on February 25, 1975, which had not been modified or appealed. The court dismissed the mechanic's lien complaint "with prejudice" by its order dated October 29, 1975. Plaintiffs appeal from the October 29 order of dismissal.

The mechanic's lien plaintiffs are styled "Leonard E. Sjostrom and Joyce Sjostrom, d/b/a Joyce Builders." They contend that the prior suit (Kane County Circuit Court No. 74LM6367) brought in the name of "JOYCE BUILDERS, a corporation, vs. RONALD McMURRAY" was a nullity for the reason that the Sjostroms individually did business under the assumed name of Joyce Builders and no such corporation existed. They further contend that a suit mistakenly brought in the name of a nonexistent corporation to recover a personal money judgment does not bar an in rem suit to foreclose a mechanic's lien. They also contend that under the circumstances the dismissal of 74LM6367 which was for failure to file interrogatories pursuant to Supreme Court Rule 219 (Ill. Rev. Stat. 1973, ch. 110A, par. 219) was not a trial on the merits and therefore was not res judicata.

A review of the files in 74LM6367 reveals that the complaint as amended, filed in the name of the purported corporation recites that plaintiff is in the business of building and related services; that on November 20, 1973, and on subsequent dates defendant contracted for certain improvements on the described property of the defendant, Ronald McMurray, in accordance with the attached exhibits; that the reasonable value of the improvements is $9832.25; and that defendant has paid $7000, leaving a balance of $2832.25 which defendant has refused to pay on demand.

The order dismissing the first suit recited that plaintiff "did not seek Counsel or answer defendant's interrogatories, all as required by a previous order of this Court," and ordered the cause of action dismissed with prejudice under Supreme Court Rule 219. *fn1

• 1 Plaintiffs' initial argument that the original suit was a nullity is not persuasive. They rely principally upon the appellate court opinion in Vukovich v. Custer, 347 Ill. App. 547 (1952), which was reversed in 415 Ill. 290 (1953). In Vukovich, the named plaintiff died prior to the time the suit was filed. The appellate court concluded that the suit was therefore a nullity which could not be amended. The supreme court, however 415 Ill. 290, 293) without deciding that question, held that even if the original complaint were to be considered a nullity, the amended complaint did not fall since it could be considered an original complaint timely filed. The complaint in 74LM6367, however, was filed by a misnamed plaintiff in the sense that Joyce Builders was not a corporation but the assumed name of the plaintiffs in this action. The misnomer could have been corrected under section 21(2) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 21(2)) which expressly provides that the misnomer of a party is not grounds for dismissal and that the name of any party may be corrected at any time, before or after judgment. See also Calvert Distillers Co. v. Vesolowski, 14 Ill. App.3d 634, 636 (1973).

• 2 While an opposing party may require that a misnomer be corrected, he cannot force a dismissal for the misnomer. (See Hoagland v. Brown, 71 Ill. App.2d 240, 243 (1966); Ingram v. MFA Insurance Co., 18 Ill. App.3d 560, 566 (1974).) It follows that a party may not take advantage of his own misnomer to avoid a dismissal which has resulted from his failure to comply with other court rules.

• 3, 4 We also are not persuaded by plaintiffs' arguments based on their theory that a dismissal under Supreme Court Rule 219 is the same as a dismissal for failure of prosecution so as to permit a refiling of the suit within one year under section 24 of the Limitations Act (Ill. Rev. Stat. 1973, ch. 83, par. 24a). A dismissal for failure of prosecution is not a hearing on the merits which bars a second suit. (See Casillas v. Rosengren, 86 Ill. App.2d 139, 143 (1967).) However, dismissals for failure to comply with discovery and pretrial conference orders of the court under Supreme Court Rule 219 are not the same as dismissals for want of prosecution. Keilholz v. Chicago & North Western Ry. Co., 59 Ill.2d 34, 37-38 (1974); Heizman v. City of Chicago, 23 Ill. App.3d 835, 837-38 (1974).

• 5 We also reject that portion of plaintiffs' argument which could have been addressed upon an appeal of the earlier judgment. In this regard the plaintiffs argue that Supreme Court Rule 219 is based on the federal rules of civil procedure which have been interpreted to sanction dismissal for failure to comply with discovery orders only where the failure is wilful, deliberate and flagrant (e.g., Societe Internationale v. Rogers, 357 U.S. 197, 2 L.Ed.2d 1255, 78 S.Ct. 1087 (1958); Trans World Airlines, Inc. v. Hughes, 449 F.2d 51 (2d Cir. 1971)). Societe Internationale involved a direct appeal of the dismissal of a case for failure to produce documents. Trans World involved a default judgment which was entered for failure to appear for a deposition and is otherwise inapposite on its facts. The argument that plaintiffs were not guilty of a deliberate and flagrant failure to appear for a deposition could have been heard on direct review of the dismissal order of October 29, 1975, and cannot now be heard after plaintiffs' failure to appeal from that order.

We then reach defendants further argument that a dismissal pursuant to Supreme Court Rule 219 is not a trial on the merits and therefore does not bar a second proceeding. In Keilholz v. Chicago & North Western Ry. Co., 59 Ill.2d 34 (1974), the court held that after a dismissal for failure to appear at a pretrial conference the plaintiff had no right to file a new action free of the normal bar of the statute of limitations. The court found it unnecessary therefore to consider whether the dismissal order was an adjudication on the merits under Supreme Court Rule 273 (Ill. Rev. Stat. 1973, ch. 110A, par. 273), which provides:

"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 indispensable party, operates as an adjudication upon the merits."

In Heinzman v. City of Chicago, 23 Ill. App.3d 835, 836 (1974), the appellate court reasoned that a dismissal for failure to give a discovery deposition was "involuntary," not based on lack of jurisdiction, improper venue, or failure to join an indispensable party, was not "otherwise" specified, and therefore under Supreme Court Rule 273 operated as an adjudication upon the merits.

In the case before us we do not have the identical issue involved in Keilholz and Heizman. These plaintiffs did not seek to refile the same cause of action for a money judgment which they had earlier filed and which had been dismissed. The defendants moved to dismiss the subsequent suit and their motion directly raises the issue of res judicata and requires us to decide whether the earlier dismissal was an adjudication of the issues on the merits common to both actions which either had been or could have been addressed in the earlier action.

It is well established under corresponding Federal rules of procedure *fn2 that a dismissal for failure to answer interrogatories is an adjudication on the merits and generally bars an identical cause of action asserted in the subsequent suit. (See Costello v. United States, 365 U.S. 265, 5 L.Ed.2d ...


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