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Manuel v. Holder

OPINION FILED AUGUST 13, 1979.

HERBERT MANUEL ET AL., PLAINTIFFS-APPELLANTS,

v.

MICHAEL HOLDER ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN E. BOWE, Judge, presiding.

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

On motion of Michael Holder and Yellow Cab Company (defendants), the trial court dismissed with prejudice a second suit by Herbert Manuel and Bernice Manuel (plaintiffs), for personal injuries allegedly resulting from a motor vehicle collision. The dismissal was based upon the statute of limitations. Plaintiffs appeal.

A chronological statement of the facts is desirable:

October 30, 1973 — The accident occurred.

October 18, 1974 — First suit filed.

October 30, 1975 — Statute of limitations ran on the accident.

March 28, 1977 — Suit dismissed on motion of defendants pursuant to Supreme Court Rule 103(b) (58 Ill.2d R. 103(b)), for failure of plaintiffs to exercise reasonable diligence to obtain service.

At this point an exposition of the record is essential. The common law record shows on April 22, 1977, the trial court ordered that this first suit against Yellow Cab Company be dismissed with prejudice. There is a note upon the minute order: "Draft order filed on the above order lost." On April 28, 1977, defendant Yellow Cab filed a motion to vacate the purported order of April 22, 1977, upon the ground that no notice concerning said order was ever served upon defendant; the trial court was not apprised of the absence of notice and counsel for plaintiff had been furnished with a copy of the previous order of dismissal entered March 28. The motion also alleged that on April 27, 1977, counsel for defendants received a letter from counsel for plaintiffs together with a copy of an order enclosed purporting to have been entered in the cause on April 22, 1977. This order showed that the case was dismissed with prejudice pursuant to Rule 103(b). Copies of these documents are appended to the motion to vacate.

April 28, 1977 — Order entered vacating the order of April 22, 1977, because it was entered without notice to defendants. The first suit therefore stood dismissed by the order of March 28, 1977.

June 27, 1977 — Notice of appeal filed by plaintiffs from the orders of March 28, 1977, and April 28, 1977.

April 21, 1978 — Second suit filed by plaintiffs against defendants alleging the same claim for damages.

May 12, 1978 — Motion of defendants to dismiss the second suit on the ground that the second complaint was barred by the statute of limitations. Photocopy of the order entered in the first case on March 28, 1977, is appended thereto.

May 25, 1978 — Answer by plaintiffs to motion to dismiss alleges that the final order in the first case was entered April 28, 1977, and the second suit was filed April 21, 1978, within one year after the final order. ...


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