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Flores v. Dugan

OPINION FILED APRIL 16, 1982.

ROBERTO FLORES ET AL., APPELLANTS,

v.

THERESA DUGAN, APPELLEE.



Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Lake County, the Hon. Robert McQueen, Judge, presiding.

CHIEF JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 27, 1982.

Plaintiffs, Roberto and Maria Flores, appeal from the dismissal for want of prosecution of their complaint against the defendant, Theresa Dugan. The circuit court of Lake County denied the plaintiffs' motion for a continuance of the trial date and dismissed the cause for want of prosecution. The appellate court, in a Rule 23 order (73 Ill.2d R. 23) holding that a dismissal for want of prosecution was not a final and appealable order, dismissed the appeal. (90 Ill. App.3d 1201.) The issue presented is whether a dismissal for want of prosecution, in light of the absolute right to refile the suit under section 24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a), is a final and appealable order under our Rule 301 (73 Ill.2d R. 301). We granted plaintiffs leave to appeal (73 Ill.2d R. 315).

In 1976 plaintiffs filed a personal injury action in the circuit court of Lake County for damages resulting from an automobile accident with the defendant. The case was tried before a jury, and a verdict was returned for the plaintiffs. Thereafter the trial judge granted defendant's motion for a new trial. The appellate court denied the plaintiffs' petition for leave to appeal from the order granting the new trial. (See 73 Ill.2d R. 306.) The case was remanded to the trial court, and a new trial date was set for June 25, 1979. The judge was unable to hear the case on that date. Trial was specially reset for August 27, 1979, to accommodate the plaintiffs. The week of August 27 was a week customarily reserved for non-jury matters in Lake County. Plaintiffs' counsel apparently was told by a clerk in the Lake County court administrator's office one week prior to August 27 that the case would not be heard on the scheduled date. However, the trial judge informed plaintiffs' counsel on August 24 that the case would be heard on August 27. The trial judge also informed plaintiffs' counsel that a clerk in the administrator's office had no authority to tell an attorney that a particular case would not be heard. Plaintiffs' attorney voiced his objection to the August 27 trial date. He stated that the plaintiffs' physician would not be available to testify on that date. Plaintiffs' physician was not subpoenaed as required under local rule, and the trial judge told plaintiffs' attorney that in Lake County, if the doctor had not been subpoenaed, the fact that the doctor is unavailable is not a ground for a continuance.

On August 27, another attorney from plaintiffs' counsel's office appeared in court on behalf of plaintiffs. He presented a motion for a continuance because of the absence of plaintiffs' physician and of the other attorney, who, he claimed, was involved in another matter in Cook County circuit court. The trial judge denied the motion and offered plaintiffs' counsel the options of (1) proceeding to trial, (2) taking a voluntary dismissal, or (3) allowing a dismissal for want of prosecution. Counsel chose a dismissal for want of prosecution, and the trial court entered an order which stated that the cause was dismissed "for want of prosecution without prejudice to refile this suit within the time permitted by statute." The judge later denied the plaintiffs' petition to vacate the earlier order.

Plaintiffs argue that a dismissal for want of prosecution is a final and appealable order. The basis of plaintiffs' argument is that the effect of the dismissal is to dispose of the cause and remove it from the court's calendar, even though it is not a decision on the merits. Plaintiffs also argue that it was an abuse of discretion for the trial judge to deny the continuance and dismiss the case. Defendants counter that a dismissal for want of prosecution is not a final and appealable order since the plaintiff has an absolute right to refile the cause.

We need not address whether the trial court abused its discretion because we hold that, in light of a plaintiff's absolute right to refile this cause under section 24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a), an order dismissing a cause for want of prosecution is not a final and appealable order under Supreme Court Rule 301 (73 Ill.2d R. 301).

The 1970 Constitution provides that "[a]ppeals from final judgments of a Circuit Court are a matter of right to the Appellate Court * * *." (Emphasis added.) (Ill. Const. 1970, art. VI, sec. 6.) Also, the Constitution vests in this court the authority to make rules governing appeals. (Ill. Const. 1970, art. VI, secs. 6, 16.) Accordingly, Supreme Court Rule 301 provides that "[e]very final judgment of a circuit court in a civil case is appealable as of right." (73 Ill.2d R. 301.) The appellate court, subject to exceptions for appeals from interlocutory orders specified in our rules, is without jurisdiction to review judgments, orders or decrees which are not final. (Village of Niles v. Szczesny (1958), 13 Ill.2d 45.) The specified exceptions in our rules which allow appeals from interlocutory orders are not applicable in this case.

A final judgment has been defined as a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit. (Towns v. Yellow Cab Co. (1978), 73 Ill.2d 113, 119; 49 C.J.S. Judgments sec. 5 (1947).) We have also stated on many occasions that a judgment is final if it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment. (People ex rel. Scott v. Silverstein (1981), 87 Ill.2d 167, 171; Village of Niles v. Szczesny (1958), 13 Ill.2d 45, 48.) The order or judgment in this case, dismissing the cause for want of prosecution, is not a final order since the plaintiffs had an absolute right to refile the action against the same party or parties and to reallege the same causes of action. Aranda v. Hobart Manufacturing Corp. (1977), 66 Ill.2d 616; Franzese v. Trinko (1977), 66 Ill.2d 136; Ill. Rev. Stat. 1979, ch. 83, par. 24a.

In determining the effect of a dismissal for want of prosecution as it relates to the finality of the judgment entered, it is appropriate to consider our Rule 273 (73 Ill.2d R. 273), which provides:

"Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits." (Emphasis added.)

In Kutnick v. Grant (1976), 65 Ill.2d 177, this court considered the effect of Rule 273 in relation to a dismissal for want of prosecution and noted that section 24 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par. 24a) is a statute which comes within the "otherwise specifies" provision of Rule 273. The court reasoned that the provisions of section 24 of the Limitations Act giving a plaintiff an absolute right to refile within one year following a dismissal for want of prosecution would be meaningless if Rule 273 were construed as making such a dismissal an adjudication on the merits. Thus, in Kutnick Rule 273 was held not to apply to dismissals for want of prosecution. In Kutnick the court noted that section 24 of the Limitations Act was amended to include dismissals for want of prosecution five months after Rule 273 became effective.

In People ex rel. Scott v. Silverstein (1981), 87 Ill.2d 167, 171, this court, in discussing when an order is final so as to be appealable, stated:

"A judgment is final if it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed ...


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