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Green v. Wilmot Mountain

OPINION FILED DECEMBER 24, 1980.

MARY ANN GREEN, PLAINTIFF-APPELLEE,

v.

WILMOT MOUNTAIN, INC., ET AL., DEFENDANTS-APPELLANTS.



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

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

This appeal involves the trial court's August 25, 1978, order dismissing plaintiff's 1976 personal injury action "for want of prosecution without prejudice." After plaintiff refiled her action pursuant to section 24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a), defendant Wilmot Mountain, Inc., moved for leave to appear in the original suit and to modify the August 25 dismissal order to read "with prejudice," so as to bar the refiled action. The court denied these motions and defendants *fn1 appeal. For reasons set forth, we affirm.

The chronology of events in the case follows.

January 4, 1975 Plaintiff injured in skiing accident on defendant Wilmot's ski slopes.

December 30, 1976 Complaint filed.

January 4, 1977 Statute of limitations expired.

January 17, 1977 Summons placed with Cook County sheriff (no evidence of return in record).

August 25, 1978 Complaint dismissed, without prejudice, for want of prosecution.

September 5, 1978 Plaintiff refiled her complaint under section 24 of the Limitations Act.

March 1, 1979 Wilmot moved for leave to file a special and limited appearance in the original suit and to amend the August 25 order.

March 23, 1979 Wilmot sought leave to enter a general appearance and to amend the August 25 order.

Wilmot's motion alleged that it was never served with process; that more than three years after the injury occurred, the suit was dismissed without prejudice; that the August 25 dismissal order was erroneous because, under Supreme Court Rule 103(b), the motion judge could only dismiss the cause "with prejudice," and that the August 25 order must therefore be amended accordingly.

In opposition to Wilmot's contentions, plaintiff argues: (1) the August 25, 1978, order was a final order and the trial court consequently had no jurisdiction to hear defendants' motions because they were filed after the 30-day period provided by section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.3); (2) the trial court cannot modify its order absent a memorandum which indicates the basis for ...


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