APPEAL from the Circuit Court of Lee County; the Hon. THOMAS
HORNSBY, Judge, presiding.
MR. JUSTICE BOYLE DELIVERED THE OPINION OF THE COURT:
Plaintiff-appellant, Doris Stutzke, hereinafter plaintiff, filed her second amended complaint on January 23, 1976, against defendants, Howard Edwards, Jr., and Donald Edwards, Edwards Clinic, a partnership, Mary Ada Ansel, Katherine Shaw Bethea Hospital, and E.S. Murphy, M.D. Count V of plaintiff's complaint was directed against only defendant-appellee, E.S. Murphy, M.D., hereinafter defendant. Count VI was directed against all the defendants including E.S. Murphy, M.D. After a hearing on defendants' motions which attacked various counts of plaintiff's complaint, the trial court granted some motions and gave plaintiff leave to amend within a certain time.
As to the defendant, Murphy, the trial court ordered counts V and VI be stricken and dismissed and granted plaintiff leave to file amended counts within 21 days (i.e., June 11, 1976). Plaintiff did not respond within that time, and on July 8, 1976, 27 days after the expiration of the 21-day period, the defendant filed a motion for a judgment on the pleadings and served a copy of same on the plaintiff's attorney. On July 12, 1976, plaintiff filed her notice that on July 16, 1976, she would request leave of court to file her third amended complaint, including counts VI and VII directed against the defendant. On July 16 the court denied leave to file the third amended complaint as against the defendant, Murphy, and entered judgment on the pleadings in favor of said defendant. The court later allowed the filing of the third amended complaint as against the other defendants but not as to defendant Murphy.
The trial court, in its order denying plaintiff leave to file her third amended complaint, entered conclusions of law which are interesting in terms of this disposition. The court stated that the issue was:
"Whether the dismissal order of May 21, 1976, operated as an adjudication upon the merits of the cause.
The court holds that it did for the following reasons:
1. Supreme Court Rule 273 (Ill. Rev. Stat. 1969, Chapter 110A Sec. 273) provides as follows:
`Effect of Involuntary Dismissal.
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.'"
The court further found that:
"The Judgment Order of the Court on May 21, 1976 does not fall within any of the enumerated exceptions of Supreme Court Rule 273. Therefore, since the Plaintiff failed to file her amended complaint within the time prescribed in the order of May 21, 1976 the plaintiff elected to stand on the amended complaint."
The trial court then proceeded in its opinion filed July 21, 1976, to direct defendant Murphy to prepare an order dismissing plaintiff's cause of action with prejudice and entered a judgment upon the pleadings with costs to be paid by the plaintiff. Plaintiff appeals from the order of dismissal of defendant entered on August 9, 1976, and from the order entered September 21, 1976, which denied plaintiff's motion to vacate said order of dismissal.
The issues presented are: (1) Whether the dismissal order of May 21, 1976, which permitted plaintiff 21 days' leave to amend her complaint, was a final order; and (2) Whether the record demonstrates the trial court exercised its discretion in denying plaintiff leave to amend her complaint.
Plaintiff places principal reliance on Gray v. Starkey (1976), 41 Ill. App.3d 555, 353 N.E.2d 703, and contends that the order of May 21, 1976, was not a final judgment because the trial court could have permitted an amended complaint to be filed after the expiration of the 21-day period for leave to amend to correct the technical deficiency of having failed to amend timely. Defendant, in rebuttal, contends that the order of May 21, 1976, was an adjudication upon the merits which operated as an involuntary dismissal ...