Appeal from the Circuit Court of Cook County; the Hon. Paul F.
Elward, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Plaintiff, Ronald Brewer (Brewer), appeals from the trial court's denial on July 28, 1982, of his January 10, 1979, section 72 petition for relief from judgment (formerly Ill. Rev. Stat. 1979, ch. 110, par. 72, now Ill. Rev. Stat. 1981, ch. 110, par. 2-1401). This petition requested the trial court to vacate its order of January 11, 1977, dismissing plaintiff's complaint "with prejudice" as a sanction for noncompliance with discovery.
On June 11, 1976, Brewer filed a complaint (No. 76 L 10746) against defendant, Alton Moore (Moore), in the circuit court of Cook County for personal injuries allegedly sustained in a July 2, 1974, automobile accident. In August 1976 Moore filed his appearance and answer and propounded interrogatories to Brewer. In September 1976 Moore, pursuant to Supreme Court Rule 201(k) (58 Ill.2d R. 201(k)), made written demand for the answers to interrogatories. In October 1976 Moore moved to dismiss the complaint for Brewer's failure to answer interrogatories. By agreement, hearing on the motion was continued several times. Brewer's attorney advised Moore's attorney that answers to the interrogatories were not forthcoming because Brewer had apparently moved and his attorney was unable to locate him. On December 27, 1976, Moore filed a second motion to dismiss again based on Brewer's failure to answer interrogatories. On January 11, 1977, the hearing date set for Moore's motion, Brewer's attorney telephoned Moore's attorney. Upon being advised by Moore's counsel that he would not agree to a further continuance, Brewer's counsel informed Moore's counsel that he could not appear at the hearing due to a scheduling conflict. He requested that any order of dismissal entered include language providing that if Brewer was located within 30 days the case would be reinstated, and if he was located within one year, the case could be refiled. Brewer's counsel also requested Moore's counsel to forward to him a copy of the order when entered.
On January 11, 1977, Moore's counsel drafted an order, signed by the court, which read in relevant part:
"This cause coming on to be heard on defendant's motion to dismiss plaintiff's cause of action for failure to answer interrogatories; and plaintiff's failure to comply with Supreme Court Rule 201(k); and plaintiff's failure to obey court ordered continuances to permit answering of said interrogatories. All parties having notice and plaintiff's counsel advising in open court that the plaintiffs [sic] have failed to follow their case and have failed to advise their counsel of their whereabouts upon moving and the court being fully advised in the premises,
IT IS HEREBY ORDERED that this entire cause of action is dismissed with prejudice for plaintiff's failure to answer interrogatories; comply with Supreme Court Rule 201(k) and failure to comply with previous continuances to answer interrogatories. This court further sees no just reason to delay the appeal of this order." (Emphasis added.)
On January 27, 1977, after receiving several requests, Moore's attorney mailed to Brewer's attorney a copy of the order. Immediately upon receipt of the order Brewer's attorney that same day mailed a notice of motion to vacate the order of dismissal, or to modify it to reflect the dismissal to be "voluntary" or "for want of prosecution."
At the February 3, 1977, hearing on Brewer's motion to vacate or to amend the January 11 order of dismissal, Brewer's attorney advised the court that the dismissal order prepared and submitted by Moore's counsel contained misleading and untrue statements. Brewer's counsel explained that, contrary to the wording of the order, he was not "in open court" on January 11 and he had not then "advised" the court that Mr. Brewer "failed to follow his case." Also, the order's recitation that Brewer failed "to obey court ordered continuances to permit answering of said interrogatories" was untrue; no previous order of court so provided, and no order had been entered requiring answers to the interrogatories on a date certain.
The court granted Brewer's motion in an order providing, in part, "that the order of January 11, 1977 be modified to read that this cause was dismissed for want of prosecution. The defendant objects to this modification of this order as contrary to the law and evidence and the court overrules these objections."
On March 3, 1977, Brewer, pursuant to the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 24a), filed a second action (No. 77 L 5130) in the circuit court of Cook County involving the same facts and parties. Moore moved to dismiss the second action alleging it had been filed more than two years after the July 2, 1974, automobile accident and that the refiling under section 24 of the Limitations Act was barred because dismissal of the first action was not "voluntary" but rather was an "involuntary" dismissal entered "with prejudice" as a sanction for Brewer's failure to comply with discovery.
The trial court denied Moore's motion to dismiss the second case but certified the matter for appeal to the appellate court pursuant to Supreme Court Rule 308 (58 Ill.2d R. 308). This court granted Moore's application for leave to appeal. In that appeal (Brewer v. Moore (1978), 67 Ill. App.3d 487, 487, 385 N.E.2d 73, 74) we found the "sole issue" to be "whether the dismissal of plaintiff's initial complaint acted as a bar to the refiling of a new action pursuant to section 24 of the Limitations Act." We held:
"The supreme court in Keilholz v. Chicago & Northwestern Ry. Co. (1974), 59 Ill.2d 34, 319 N.E.2d 46, held that the dismissal of an action for failure to comply with discovery is not a dismissal for want of prosecution, but rather it is an involuntary dismissal which bars refiling under section 24 [of the Limitations Act]. (See also Heizman v. City of Chicago (1st Dist. 1974), 23 Ill. App.3d 835, 320 N.E.2d 121.) In the case at bar the original dismissal order was entered as a sanction under Supreme Court Rule 219 (Ill. Rev. Stat. 1975, ch. 110A, par. 219) for failure to answer interrogatories and comply with court orders. It is obvious from the record that the trial court modified the original dismissal order so as to use the magic words `want of prosecution' and thereby bring the dismissal under the provisions of section 24.
We find that the initial action was dismissed as a sanction for failure to comply with court orders, and that the dismissal acts as a bar to refiling under section 24. Therefore, we reverse the order of the circuit court of Cook County." 67 Ill. App.3d 487, 489, 385 N.E.2d 75.
On January 10, 1979, 15 days after the filing of our opinion dismissing Brewer's second case (No. 77 L 5130), he filed in the trial court a timely section 72 petition, with supporting affidavits, requesting the trial court to vacate its January 11, 1977, order of dismissal entered in his first case (No. 76 L 10746). Brewer's section 72 petition contended: the order entered on January 11, 1977, does not "truly or accurately" relate the relevant circumstances of the case nor the agreement reached between the attorneys regarding wording of that order; Brewer's attorney had lost contact with Brewer after the case was referred to him by Brewer's initial attorneys and repeated efforts to locate Brewer were finally successful and ...