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O'reilly v. Gerber

OPINION FILED MARCH 19, 1981.

ELSIE O'REILLY, PLAINTIFF-APPELLANT,

v.

SEYMOUR GERBER, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. LOUIS J. GILIBERTO, Judge, presiding.

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

Mr. PRESIDING JUSTICE ROMITI delivered the opinion of the court:

The plaintiff has appealed after her suit was dismissed with prejudice for failure to file an amended complaint within the time permitted by the judge's order. She contends on appeal that the court erred in:

(1) denying her motion to dismiss the cause without costs although the motion was filed on the same day as the defendant's motion to dismiss;

(2) dismissing the action with prejudice, the plaintiff contending that a dismissal for want of prosecution must be without prejudice.

We find that the trial court did not err in denying the plaintiff's motion for voluntary dismissal since the plaintiff failed explicitly or even implicitly to tender costs; however, we agree with the plaintiff that the trial court erred in dismissing the suit with prejudice.

The plaintiff, Elsie O'Reilly, first filed her tort action against the defendant, Seymour Gerber, on November 29, 1977, seeking to recover for injuries suffered on January 20, 1977. On November 22, 1978, the court granted the defendant's motion to strike the complaint and ordered it to be made more definite. The court further ordered that the plaintiff should have 28 days, until December 20, 1978, to file a third amended complaint. The plaintiff did not file a third amended complaint, and on February 12, 1980, defendant gave notice of his intention to present a motion to dismiss on February 22, 1980. Thereafter, on February 19, 1980, the plaintiff gave notice that she would, on February 22, 1980, move for voluntary dismissal. Both motions were filed and heard on the same day. The record does not disclose whether plaintiff's motion was filed before defendant's motion was heard. Plaintiff's motion was based on the fact that section 52(1) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 52(1)) provides that plaintiff may at any time before trial begins dismiss the action without prejudice. The cause had not yet been set for trial. The plaintiff prayed that the cause be dismissed without prejudice and without cost. Defendant in his motion prayed for a dismissal with prejudice on the ground that a period of time in excess of 13 months had elapsed since the end of the time limit of 28 days within which the plaintiff had to file a third amended complaint under the court's order of November 22, 1978. The trial court dismissed the plaintiff's cause of action with prejudice for failure to comply with the court's order of November 22, 1978. In the same order, it denied the plaintiff's motion because "the plaintiff has no complaint on file having failed to comply with this court's order of November 22, 1978."

I.

• 1 Section 52(1) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 52(1)), provides in part:

"The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or his attorney, and upon payment of costs, dismiss his action or any part thereof as to any defendant, without prejudice, by order filed in the cause."

It is well established that the statute gives the plaintiff an absolute right to dismiss before trial if plaintiff pays or tenders costs. (Galowich v. Beech Aircraft Corp. (1981), 93 Ill. App.3d 690, 417 N.E.2d 673; In re Marriage of Wright (1981), 92 Ill. App.3d 708, 416 N.E.2d 298; In re Marriage of Brown (1980), 86 Ill. App.3d 964, 410 N.E.2d 79; North Park Bus Service, Inc. v. Pastor (1976), 39 Ill. App.3d 406, 349 N.E.2d 664.) It follows that since the plaintiff's right to dismiss before trial was absolute (assuming she paid or tendered costs) the court's reason for denying her motion was erroneous. It was immaterial whether she had filed an amended complaint or not.

Defendant however contends that the trial court's ruling was proper because a "trial or hearing" had already commenced. We need not consider this issue because plaintiff's motion was properly denied since the plaintiff neither paid nor tendered costs. (Galowich v. Beech Aircraft Corp. (1981), 93 Ill. App.3d 690, 417 N.E.2d 673; Juen v. Juen (1973), 12 Ill. App.3d 284, 297 N.E.2d 633.) While we indicated in In re Marriage of Brown (1980), 86 Ill. App.3d 964, 410 N.E.2d 79, that it is not always necessary to explicitly tender costs, the plaintiff here expressly sought to have the cause dismissed "without cost."

II.

• 2, 3 The trial court's order stated that the cause was dismissed with prejudice because of plaintiff's failure to file an amended complaint within the stipulated time. Supreme Court Rule 219(c) (Ill. Rev. Stat. 1979, ch. 110A, par. 219(c)) gives the court the power to dismiss with prejudice for violation of Rules 201 through 218. (Ill. Rev. Stat. 1979, ch. 110A, pars. 201 through 218.) But none of these rules, which relate solely to discovery and pretrial, was violated here. The defendant has cited no rule giving the court the right to dismiss the cause with prejudice under the facts of this case, and we have found none. The courts> of this State do have, and have always had, the inherent power to dismiss suits for want of prosecution. (Sanitary District v. Chapin (1907), 226 Ill. 499, 80 N.E. 1017; Sandman v. Marshall Field & Co. (1975), 27 Ill. App.3d 427, 326 N.E.2d 514.) However it is clear from a perusal of the cases that a dismissal for want of prosecution has always been considered not to be an adjudication on the merits, not to prejudice the case of the party against whom it is entered, and not to act as a bar to a subsequent suit on the same issues (Aranda v. Hobart Manufacturing Corp. (1977), 66 Ill.2d 616, 363 N.E.2d 796; Kutnick v. Grant (1976), 65 Ill.2d 177, 357 N.E.2d 480; Eldredge v. Huntington (1840), 3 Ill. (2 Scam.) 535; Sjostrom v. McMurray (1977), 47 Ill. App.3d 1040, 362 N.E.2d 744; People ex rel. Johnson v. City of Waukegan (1976), 35 Ill. App.3d 713, 342 N.E.2d 480; Mages Sports Arenas, Inc. v. Winston Park Shopping Center, Inc. (1969), 112 Ill. App.2d 409, 251 N.E.2d 334; Casillas v. Rosengren (1967), 86 Ill. App.2d 139, 229 N.E.2d 141; Branom v. Miller (1960), 25 Ill. App.2d 94, 166 N.E.2d 123; Wetzel v. Pruitt (1941), 309 Ill. App. 438, 32 N.E.2d 989 (abstract); Motel v. Andracki (1939), 299 Ill. App. 166, 19 N.E.2d 832; Wood v. Maxwell (1925), 238 Ill. App. 597; Orvis v. Cole (1884), 14 Ill. App. 283); in other words, a dismissal for want of prosecution was always considered to be without prejudice since a dismissal with prejudice denotes an adjudication on the merits and is res judicata. (General Parking Corp. v. Kimmel (1979), 79 Ill. App.3d 883, 398 N.E.2d 1104; Bernhardt v. Fritzshall (1973), 9 Ill. App.3d 1041, 293 N.E.2d 650, appeal denied (1973), 53 Ill.2d 607.) ...


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