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Johnson v. United Nat'l Indus.

OPINION FILED JUNE 29, 1984.

COKER JOHNSON, PLAINTIFF-APPELLEE,

v.

UNITED NATIONAL INDUSTRIES, INC., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

We granted defendant's petition for leave to appeal under Supreme Court Rule 306(a)(1)(iii) (87 Ill.2d R. 306(a)(1)(iii)) from the trial court's order denying reconsideration of its earlier order, which denied defendant's motion to quash service and dismiss plaintiff's cause for lack of jurisdiction.

The sole issue on appeal is whether the trial court had jurisdiction over defendant on June 29, 1982, in order to vacate plaintiff's voluntary dismissal entered on March 10, 1981.

The following facts are pertinent to the disposition of this appeal.

Plaintiff brought a products liability action against his employer, United National Industries, Inc., a Delaware corporation, in which he sought to recover damages for an injury he suffered as the result of his use of a textile waste picker machine on May 10, 1979. The machine was allegedly designed and/or manufactured by defendant. Summons was served upon United at the office of its registered agent on March 3, 1981. That same day, a notice of motion was sent to United's registered agent by plaintiff's attorney. In his motion, plaintiff sought leave to amend his complaint by dismissing defendant United and adding James Hunter Machine Company as defendant. (The record does not disclose whether United appeared on this motion.)

The trial court allowed plaintiff's motion on March 10, 1981, at which time it ordered that "leave be and is hereby granted to plaintiff to amend his complaint by dismissing United National Industries, Inc., a Delaware corporation, as a party defendant and adding James Hunter Machine Company as a party defendant and for summons to issue forthwith." The dismissal order was silent concerning the plaintiff's ability to later set aside the order of dismissal and reinstate the cause as against United.

Plaintiff then filed an amended complaint naming the James Hunter Machine Company (Hunter), a Massachusetts corporation, as defendant. After Hunter was served on March 18, 1981, it filed its verified answer in which it admitted to being engaged in the manufacture, sale and distribution of machinery for use in the textile industry, but generally denied most of plaintiff's allegations. Hunter's motion for summary judgment alleged that it had never designed, manufactured or placed into the stream of commerce any machinery to United's plant facilities. The motion for summary judgment was granted on June 29, 1982. At this time the trial court also ordered that its March 10, 1981, order which dismissed United as a party defendant be set aside and held for naught, and that the original complaint be reinstated as against defendant United with summons to issue forthwith.

On July 13, 1982, an alias summons was served upon United. Defendant filed a special and limited appearance and moved to quash the alleged service of summons and dismiss the cause of action for lack of jurisdiction, stating that it had been voluntarily dismissed by plaintiff 15 months prior to the June 29, 1982, reinstatement order. Defendant's motion further alleged, inter alia, that because more than 30 days had elapsed since its dismissal the court had lost jurisdiction and had no power to reinstate a cause of action against it; that the motion presented by plaintiff to reinstate it was ex parte; and that the motion presented by plaintiff was not in the form of a petition pursuant to section 2-1401 (formerly section 72) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1401), and therefore could not impart jurisdiction upon the court.

Defendant's motion to quash and dismiss for lack of jurisdiction was denied by the trial court on April 5, 1983, at which time defendant was ordered to file an answer to plaintiff's complaint by April 28, 1983. On June 9, 1983, the trial court denied defendant's motion for rehearing on its previous motion, as well as its request that the trial court amend its order of April 5, 1983, to reflect the certification of the involved question of law to the appellate court.

The issue presented on appeal is whether the trial court had jurisdiction over defendant on June 29, 1982, in order to vacate its previous order entered on March 10, 1981, and reinstate this cause of action against defendant when plaintiff had voluntarily dismissed defendant 15 months earlier.

OPINION

Defendant initially contends that the trial court erred in setting aside its order of voluntary dismissal entered on March 10, 1981, and reinstating this cause of action against it because the trial court did not have jurisdiction over it to do so.

Defendant relies principally on the supreme court's decision in Weisguth v. Supreme Tribe of Ben Hur (1916), 272 Ill. 541, 112 N.E. 350, where the court stated:

"In involuntary non-suits the court may, in its discretion, set aside the order of dismissal and re-instate the cause. In case of a voluntary non-suit upon motion of a plaintiff the court has no power to set aside the order of dismissal and re-instate the cause unless at the time the non-suit is taken leave is given the plaintiff to move to set it aside. [Citations.] The reason for this rule is apparent. If a plaintiff by his deliberate and voluntary act secures the dismissal of his suit he must be held to have anticipated the effect and necessary results of this action and should not be restored to the position and the ...


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