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Elders v. Sears Roebuck & Co.

OPINION FILED MARCH 31, 1980.

JERRY A. ELDERS ET AL., PLAINTIFFS,

v.

SEARS ROEBUCK & CO., DEFENDANT-APPELLANT. — (FLASH DELIVERY SYSTEMS, INC., PLAINTIFF-APPELLEE; ARMSTRONG RUBBER CO., DEFENDANT.)



APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

This action was dismissed for failure to comply with a court order relating to discovery. However, pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72), the dismissal order was modified to provide that the dismissal was for want of prosecution, thereby purportedly permitting plaintiff to refile the action under section 24 of the Limitations Act. (Ill. Rev. Stat. 1977, ch. 83, par. 24a.) Defendant has appealed, contending the trial court erred in granting any relief from the dismissal.

On May 1, 1974, plaintiff, Flash Delivery Systems, Inc., filed an action against defendant, Sears Roebuck & Co., for $9500 in property damage. The complaint alleged that plaintiff's truck had been damaged in an accident caused by a sudden blowout of a tire purchased from defendant. On April 28, 1976, the lawsuit was consolidated with a related personal injury action filed by the driver of the truck; thereafter, as expressly provided in the consolidation order, both actions were carried under the designation, "Elders, et al. v. Sears, et al., 75 L 8535."

On May 12, 1976, defendant propounded interrogatories to be answered by plaintiff, and on December 6, 1976, defendant propounded a second set of interrogatories, as well as a request for documents. When no answers were forthcoming, defendant's counsel sent counsel for plaintiff a letter, requesting compliance or explanation, but plaintiff made no reply. On March 8, 1977, the court ordered plaintiff to comply with the requested discovery within 14 days. While plaintiff timely answered most of the interrogatories, which were numerous, some answers were not filed until two months later.

On January 3, 1978, defendant propounded several additional interrogatories and filed a notice for plaintiff to produce one of its recordkeeping employees for her deposition. After the deposition had been rescheduled several times, counsel for plaintiff informed defendant that plaintiff refused to produce the employee. Plaintiff ultimately did produce the deponent, but only after defendant obtained a court order compelling production.

Meanwhile, plaintiff never answered the additional interrogatories. On June 20, 1978, upon defendant's motion, the court ordered plaintiff to answer those interrogatories within 28 days. Plaintiff did not do so. Thereafter, on August 14, 1978, defendant presented a motion to dismiss plaintiff's action for failing to comply with the court order compelling plaintiff to answer the interrogatories. When, that same day, the motion came on for hearing, no one appeared for plaintiff. The court then granted defendant's motion to dismiss with prejudice.

On December 29, 1978, plaintiff filed a section 72 petition to vacate the order of dismissal entered on August 14, 1978, 4 1/2 months before. The sole statement of any grounds for relief appeared in an affidavit which stated as follows:

"Now comes JOSEPH P. MARTO, having been duly sworn, and on oath states as follows:

1. That he is an Attorney and associated with the law offices of George J. Guest, Attorney of record for FLASH DELIVERY SYSTEMS, INC., one of the plaintiffs herein;

2. That he has knowledge of the procedures pertaining to the handling of this case in the aforesaid office;

3. That this case was listed on the Motion Call for August 11, 1978, as `Elders vs. Sears Roebuck' and as such was missed by our Law Clerk as being one of our cases;

4. That by the time your affiant located the office file by the Court number, the defendant's Motion to Dismiss had been sustained;

5. That defendant's Motion to Dismiss was based on plaintiff's failure to answer certain Interrogatories ordered to be answered on June 20, 1978;

6. That in order to answer said Interrogatories, it was necessary to pursue certain investigation with the plaintiff and with plaintiff's insurance ...


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