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Wallace v. Smith

OPINION FILED AUGUST 24, 1979.

MATTIE WALLACE ET AL., PLAINTIFFS-APPELLANTS,

v.

MARY O. SMITH ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND SARNOW, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Plaintiffs appeal from orders dismissing their complaints for personal injuries against defendant Smith, and granting summary judgment in favor of defendant Dart Industries, Inc. On appeal, they contend that the court's orders were erroneous.

The following facts appearing in the record are pertinent to the disposition of this appeal.

On November 30, 1973, plaintiffs filed a complaint alleging that on December 3, 1971, at or near 348 East 115th Street in Chicago, Mary O. Smith, while acting as agent, servant and/or with the permission and consent of Dart Industries, Inc., negligently caused their automobile accident and resulting personal injuries. A summons was issued on November 30, 1973, and the Cook County sheriff was directed to serve both defendants. Although service was executed by the Cook County sheriff on Dart Industries on December 6, there is no record that service was had on Smith. On January 22, 1974, Dart Industries filed its appearance, jury demand, and answer to plaintiffs' complaint.

On June 22, 1976, an "alias" summons was issued against Smith. Service was obtained on Smith for the first time when this summons was served on her in care of the Secretary of State, and received by that office on June 25. After filing an appearance, Smith filed a motion which cited Supreme Court Rule 103(b) (Ill. Rev. Stat. 1977, ch. 110A, par. 103(b)), and moved that the complaint be dismissed based on plaintiffs' lack of diligence in obtaining service. Smith's motion was granted on December 3, 1976, and plaintiffs' complaint against her was ordered dismissed with prejudice. Additionally, leave was granted Dart Industries to renew its motion for summary judgment, which had been filed on April 23, 1976, but had not been ruled upon. Following a hearing, on May 6, 1977, Dart Industries' motion for summary judgment was granted. Plaintiffs then filed a notice of appeal, numbered 77-1134, citing both the order dismissing Smith and the order granting summary judgment to Dart Industries as erroneous.

On October 18, 1977, while their appeal was pending, plaintiffs filed a new complaint which named Mary O. Smith as the sole defendant. The complaint again alleged that Smith negligently caused the automobile accident and resulting personal injuries suffered by plaintiffs on December 1, 1971. The complaint acknowledged that the suit plaintiffs previously brought against Smith had been dismissed, but stated that, "there was no hearing or trial on the merits of the claim in said dismissal." Smith's motion to dismiss this complaint was granted on February 22, 1978. Plaintiffs' appeal from that order, numbered 78-866, was consolidated with their previous appeal.

OPINION

• 1 Plaintiffs first contend that the order dismissing their original complaint against Smith was erroneous. That complaint was dismissed "with prejudice" by the court under the authority of Supreme Court Rule 103(b) (Ill. Rev. Stat. 1977, ch. 110A, par. 103(b)) which provides that:

"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."

A motion to dismiss pursuant to Rule 103(b) is addressed to the sound discretion of the trial court and, absent an abuse of that discretion, the trial court's ruling will not be disturbed. (Montero v. University of Illinois Hospital (1978), 57 Ill. App.3d 206, 372 N.E.2d 1010; Martin v. Lozada (1974), 23 Ill. App.3d 8, 318 N.E.2d 334.) The record herein shows that plaintiffs filed their original complaint on November 30, 1973, a few days before the two year limitation period was due to expire on their claims for personal injuries arising out of the accident of December 3, 1971. (See Ill. Rev. Stat. 1977, ch. 83, par. 15.) The record further indicates that plaintiffs did not even attempt to obtain service on defendant Smith until over 2 1/2 years later, when an alias summons was served in care of the Secretary of State. Plaintiffs concede these facts. They state, however, that the purpose of Rule 103(b) is to "prevent the accumulation of dead cases from the court calendar," and that this situation did not result because defendant Dart Industries, Inc., was timely served, filed its answer, and proceeded with plaintiffs to discovery. On this basis, and with the added assertion that Smith was not prejudiced by their delay, plaintiffs conclude that dismissing their complaint against Smith was overly "harsh" and erroneous.

• 2, 3 We disagree. The purpose of Rule 103(b) is not, as plaintiffs characterize it, to "prevent the accumulation of dead cases," but is rather to protect defendants from all unnecessary delays in service of process upon them and to safeguard against the undermining of the statutes of limitations. (Alsobrook v. Cote (1971), 133 Ill. App.2d 261, 273 N.E.2d 270.) It is true, as plaintiffs point out, that courts> have been warned against using Rule 103(b) as a vehicle to dispose of litigation. (Aranda v. Hobart Manufacturing Corp. (1977), 66 Ill.2d 616, 621, 363 N.E.2d 796, 799 (Dooley, J., specially concurring).) Dismissals of actions are nevertheless clearly proper when the statute of limitations has expired and reasonable diligence to obtain service has not been exercised. This court recently explained in Piscitello v. Barton (1978), 66 Ill. App.3d 451, 453-54, 384 N.E.2d 47, 49-50, that:

"Rule 103(b) does not set a specific time limitation within which defendant must be served, but it does put the burden upon plaintiff to show that he has exercised reasonable diligence in obtaining service. (Connaughton v. Burke (1st Dist. 1977), 46 Ill. App.3d 602, 361 N.E.2d 87; Alsobrook v. Cote (1st Dist. 1971), 133 Ill. App.2d 261, 273 N.E.2d 270.) It is not incumbent upon defendant to show prejudice by the delay. (Phifer v. Hayes (1st Dist. 1974), 20 Ill. App.3d 635, 314 N.E.2d 473.) The standard for determining reasonable diligence is objective. (Connaughton v. Burke.) Although each case must be decided on its own particular facts and circumstances, courts> will examine certain factors in deciding whether plaintiff has exercised reasonable diligence. Among the factors to be considered are: (1) the length of time used to obtain service; (2) the activities of plaintiff; (3) any knowledge on part of plaintiff of defendant's location; (4) the ease with which defendant's whereabouts could have been ascertained; (5) the actual knowledge of defendant of pendency of the action; and (6) special circumstances which would affect the efforts made by plaintiff."

It was not necessary for Smith's motion to dismiss under Rule 103(b) to be supported by a showing that she was prejudiced by plaintiffs' delay. The burden was and is on plaintiffs to produce facts showing that they exercised reasonable diligence in obtaining service. However, plaintiffs have completely failed to meet that burden. They did not even attempt to serve Smith for over 2 1/2 years after the complaint was filed and the limitation period expired. This is the case even though they had her address, and conceded at oral argument that locating her presented no special difficulty. It should also be noted that when service was finally accomplished, it was through an alias summons delivered to the Secretary of State. In light of the passage of time, plaintiffs' inactivity, their knowledge of Smith's location and the ease with which service could have been accomplished, we conclude that the trial court's dismissal of plaintiffs' complaint was a proper exercise of its discretion.

Plaintiffs further contend that it was error for the court to dismiss their second complaint against Smith. This complaint was filed on October 18, 1977, during the pendency of plaintiffs' appeal from the dismissal of their first complaint against Smith, and some six years after the accident on which it was based. Plaintiffs argue that the complaint should not have been dismissed and cite section 24 of the ...


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