APPEAL from the Circuit Court of Cook County; the Hon. PHILIP
A. FLEISCHMAN, Judge, presiding.
MR. PRESIDING JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
The plaintiff filed suit against Harry Knoll for negligence and against his insurance carrier Country Mutual Insurance Company and its agent Townsend on an alleged settlement agreement. The suit in contract was voluntarily dismissed by the plaintiff, then reinstated. At trial on the contract claim, the trial court found there had been a settlement agreement, awarded judgment for the amount of the agreement plus pre-judgment interest against both the insurer and its agent. Both appealed contending:
1. the court had no jurisdiction to reinstate the complaint once it had been voluntarily dismissed;
2. the agent Townsend cannot be personally liable on the contract;
3. the court erred in introducing into evidence a memorandum letter of the insurer which indicated that a settlement offer had in fact been made;
4. that the findings and judgment were against the manifest weight of the evidence;
5. that it was error to award prejudgment interest.
We agree with Townsend that, since the insurer for purposes of appeal has admitted that it is bound by any agreement made, the agent cannot be held liable on the agreement. Accordingly we reverse the judgment against the agent. We also agree with the insurer that the court erred in awarding prejudgment interest. We hold, however, that the court did not err in reinstating the complaint, in considering the memorandum letter or in finding that there was a binding settlement agreement. Accordingly we modify the judgment against the insurer to delete the award of prejudgment interest and affirm as modified.
Obviously the first question which must be addressed by this court is whether the trial court had the power to reinstate the complaint since if it did not have the power to do so, the case must be reversed and dismissed.
Suit was filed by the plaintiff against the three defendants on May 26, 1975. Count I alleged that Harry Knoll on July 7, 1974, injured plaintiff by certain negligent acts. Count II alleged that Country Mutual and Wilbur Townsend on December 31, 1974, made a settlement offer which was accepted. Judgment under count II was requested in an amount equal to the difference between the verdict on count one, assuming the verdict was less than $20,000, and $20,000.
By stipulation, the insurer and its agent were given until June 1, 1976 to "appear, answer or otherwise plead." On May 24, 1976, count II was voluntarily dismissed on plaintiff's motion. The cause remained pending as to defendant Knoll and the order of dismissal contained no finding regarding appealability or enforcement.
On July 5, 1979, plaintiff's motion to reinstate count II of the complaint was granted. Knoll moved to vacate this order and the motion was denied on August 15, 1979, for want of standing. On July 24, the court granted plaintiff leave to file his second amended complaint, the third count of which was the same as the second count of the dismissed complaint. On August 15, 1979, plaintiff was granted leave to cause alias summons to issue to the insurer and its agent. It is clear from the record that both were in fact served.
Country Mutual entered its general appearance on October 1, 1979. On the same day it filed a motion to dismiss count III on the grounds the court had been without jurisdiction to set aside the voluntary dismissal because it had been entered without leave to reinstate. The motion was denied as was a later one filed by both the insurer and its agent. The insurer filed its answer to the amended complaint on December 3, 1979.
It was early established in Weisguth v. Supreme Tribe of Ben Hur (1916), 272 Ill. 541, 112 N.E. 350, and succeeding cases that a court has no jurisdiction to set aside an order of voluntary dismissal obtained upon motion of the plaintiff unless, at the time the non-suit is taken, leave is given the plaintiff to move to set it aside; the plaintiff's only recourse in such cases is to begin anew. (See, e.g., Bettenhausen v. Guenther (1944), 388 Ill. 487, 58 N.E.2d 550; Village of Arlington Heights v. American National Bank & Trust Co. (1979), 72 Ill. App.3d 744, 391 N.E.2d 108; Miller v. Bloomberg (1978), 60 Ill. App.3d 362, 376 N.E.2d 748; People ex rel. Scott v. Police Hall of Fame, Inc. (1978), 60 Ill. App.3d 331, 376 N.E.2d 665; Nashlund v. Sabade (1976), 39 Ill. App.3d 139, 350 N.E.2d 90, appeal denied (1976), 63 Ill.2d 557; Underwood v. Yellow Cab Co. (1971), 131 Ill. App.3d 449, 268 N.E.2d 254; Fulton v. Yondorf (1944), 324 Ill. App. 452, 58 N.E.2d 640; Thompson v. Otis (1936), 285 Ill. App. 523, 2 N.E.2d 370.) Weisguth involved a case where the sole plaintiff dismissed the suit against the sole defendant. The court in Thompson indicated that this rule was inapplicable where the case was dismissed as to only one of several defendants. Subsequently, however, the same court held in Fulton that the rule was applicable even where suit was dismissed against one of several defendants, and in both Village of Arlington Heights and People ex rel. Scott, the appellate courts> held that the trial court had no power to allow the reinstatement of the suit against one defendant even though the suit had continued as to other defendants. In neither of the recent cases did the appellate court discuss the effect of the Supreme Court Rule 304(a). Ill. Rev. Stat. 1979, ch. 110A, par. 304(a).
• 1 The earlier cases were decided before the enactment of section 50(2) of the Illinois Civil Practice Act of 1955 or Illinois Supreme Court Rule 304(a) which superseded it. Prior to their enactment a voluntary dismissal was final and appealable in all instances even when it disposed of fewer than all parties or claims. (Ill. Ann. Stat., ch. 110A, par. 304, Historical and Practice Notes, at 586 (Smith-Hurd 1968).) Under those circumstances the trial court obviously could not retain jurisdiction to reinstate a claim voluntarily dismissed. However Supreme Court Rule 304(a) provides:
"If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court's own motion or on motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is ...