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Hanna v. Kelly

OPINION FILED DECEMBER 12, 1980.

DIERDRE J. HANNA, PLAINTIFF-APPELLANT,

v.

JAMES P. KELLY, DEFENDANT-APPELLEE. — (PETER F. KELLY ET AL., DEFENDANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR SULLIVAN, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from a trial court order dismissing her claim as to defendant James P. Kelly for failure of diligent service of process as required by Rule 103(b) (Ill. Rev. Stat. 1977, ch. 110A, par. 103(b)). On appeal, the only issue for review is whether plaintiff exercised sufficient diligence to obtain service of process. We affirm the trial court. The pertinent facts follow.

Plaintiff filed a complaint on July 8, 1976, against James P. Kelly (James), Peter F. Kelly (Peter), and two other defendants for injuries allegedly sustained by her arising out of an automobile accident which occurred on July 24, 1974. Summons was issued that day for service on all defendants. Three defendants were served; however, the summons directed to James at 3840 Gaslight Drive, Alsip, Illinois, was returned by the sheriff marked "not found."

On plaintiff's motion, an order was entered on September 1, 1976, suspending discovery "until all parties have appeared, or in the alternative, until good cause is shown." Plaintiff, however, commenced discovery when she served interrogatories on Peter on September 23, 1976. Interrogatory No. 2 asked: "State the full name and address of each person who witnessed or claims to have witnessed the occurrence alleged in the complaint."

In January 1977, counsel for Peter inquired why plaintiff had not answered the interrogatories sent her. Counsel for plaintiff sent the September 1 order in response. Counsel for defendant Peter replied on February 9 that: "I am somewhat puzzled at your reluctance to answer our interrogatories propounded to the plaintiff inasmuch as all parties obviously appeared."

Plaintiff's attorney wrote to Peter's counsel on July 14, 1977, inquiring about answers to interrogatories to be filed by Peter. He was advised on July 22, 1977, that the answers were prepared and required only Peter's signature. Plaintiff's counsel inquired about the answers to interrogatories again on August 31 and October 6, 1977. Peter's answers were filed on January 5, 1978.

In response to interrogatory No. 2 requesting the full names and addresses of each person who witnessed or claimed to have witnessed the occurrence alleged in the complaint, Peter gave plaintiff's name (with no address), James Kelly (with no address), and Kathy Greaney (with an address). Further answers to the interrogatories indicated that Peter owned the vehicle involved in the accident and was covered under a public liability insurance policy which was in effect on the date of the occurrence. The complaint alleged that James was driving a vehicle owned by Peter.

In May 1978, plaintiff's counsel made a routine check of the case filed and discovered that no summons had been served on James or an appearance filed by him. On August 9, 1978, Peter's counsel advised plaintiff's counsel that James lived at either an address in Justice or in Chicago Ridge. Plaintiff issued an alias summons to James at both addresses, and he was finally served on August 25, 1978.

James filed a motion to dismiss in October 1978. An order was entered on July 26, 1979, dismissing plaintiff's lawsuit against him. Her motion to reconsider and vacate was denied on September 26, 1979.

OPINION

• 1 Plaintiff asserts that under the circumstances she was sufficiently diligent to bar dismissal of her claim against James under Rule 103(b) (Ill. Rev. Stat. 1977, ch. 110A, par. 103(b)). We disagree.

Rule 103(b) 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."

The standard for determining "reasonable diligence" is an objective one, and the burden is upon the plaintiff to show that he has exercised reasonable diligence in his efforts to obtain service (Dailey v. Hartley (1979), 77 Ill. App.3d 697, 396 N.E.2d 586), and the defendant need not establish that he was ...


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