APPEAL from the Circuit Court of McLean County; the Hon. WAYNE
C. TOWNLEY, JR., Judge, presiding.
MR. JUSTICE LONDRIGAN DELIVERED THE OPINION OF THE COURT:
Plaintiff appeals the trial court's order dismissing its lawsuit against defendants on the basis that the statute of limitations had expired prior to the filing of the lawsuit.
On June 14, 1979, plaintiff filed a complaint for foreclosure of a mechanic's lien alleging that plaintiff, a subcontractor, entered into an oral contract with Bill V. Martin Construction Co. to furnish materials used in the construction of a subdivision in McLean County. Plaintiff alleged that it had completed its contract on September 10, 1977.
Though the complaint was filed within the applicable two-year statute of limitations contained in the mechanics' liens act (Ill. Rev. Stat. 1979, ch. 82, pars. 7, 9), defendant Corn Belt Bank, trustee under the provisions of a trust agreement to secure payment of mortgages on the lots in the subdivision, was never served with a copy of the suit.
The applicable statute of limitations expired September 10, 1979. On September 29, 1980, defendant Corn Belt Bank filed a motion to dismiss the case pursuant to Supreme Court Rule 103(b) (Ill. Rev. Stat. 1979, ch. 110A, par. 103(b)). Prior to a hearing on that motion, plaintiff moved for voluntary dismissal without prejudice pursuant to section 52 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 52). The motion was heard and allowed by the trial court without objection by defendant on December 3, 1980.
On January 23, 1981, plaintiff commenced the present action under the authority of the limitations statute (Ill. Rev. Stat. 1979, ch. 83, par. 24a).
On January 29, 1981, Corn Belt Bank was served with process and filed a motion to dismiss on February 5, 1981, claiming that the statute of limitations had run prior to service.
After a hearing on the motion, the court dismissed plaintiff's case on the basis that plaintiff had not been diligent in serving summons upon defendant in the original action. The trial court reasoned that since the action would have been dismissed with prejudice under Supreme Court Rule 103(b) had defendant's motion been heard before plaintiff's motion for voluntary dismissal under section 52 of the Civil Practice Act, the second suit could not be maintained in light of the plaintiff's dilatory tactics.
Plaintiff has appealed the trial court's order, which contains the requisite Supreme Court Rule 304(a) finding (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a)).
Plaintiff argues that it is entitled to refile its lawsuit and maintain this subsequent action despite the running of the statute of limitations under the authority of section 24 of the limitations statute (Ill. Rev. Stat. 1979, ch. 83, par. 24a). Section 24 states in relevant part:
"In the actions specified in this Act or any other act or contract where the time for commencing an action is limited, if * * * the action is voluntarily dismissed by the plaintiff, * * * whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff * * * may commence a new action within one year or within the remaining period of limitation, whichever is greater * * * after the action is voluntarily dismissed by the plaintiff * * *."
In this case, it is clear that plaintiff's subsequent lawsuit was filed within one year after plaintiff took a voluntary dismissal of its complaint in the prior suit. Nevertheless, defendant argues that the trial court's dismissal of the subsequent lawsuit was proper because the previous voluntary dismissal was taken in response to a motion by defendant to dismiss the cause with prejudice under Supreme Court Rule 103(b). Supreme Court Rule 103(b) provides:
"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." Ill. Rev. Stat. 1979, ch. 100A, par. 103(b).
Defendant claims, and plaintiff does not dispute the fact, that had a hearing been held on defendant's motion, plaintiff's first cause of action would have been subject to dismissal with prejudice which would have barred the subsequent lawsuit. (Hanna v. Kelly (1980), 91 Ill. App.3d 896, 414 N.E.2d 1262.) The thrust of defendant's argument is that it may avoid the subsequent lawsuit by asserting a lack of diligence on the part of ...