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Clark v. Brokaw Hospital

OPINION FILED AUGUST 15, 1984.

CAROL ANN CLARK, EX'X OF THE ESTATE OF RONALD HARTZLER, PLAINTIFF-APPELLANT,

v.

BROKAW HOSPITAL ET AL., DEFENDANTS (DR. JOHN J. SCHETZ ET AL., RESPONDENTS-APPELLEES; DR. ROBERT A. KOOKER, ET AL., RESPONDENTS).



Appeal from the Circuit Court of McLean County; the Hon. Wayne C. Townley, Jr., Judge, presiding.

PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

A matter of procedure.

The adding of respondents in discovery as defendants to the lawsuit.

Carol Ann Clark, as executrix of the estate of Ronald Hartzler, filed a complaint against Brokaw Hospital on February 3, 1983. Doctors John Schetz and Douglas Bey were named as respondents in discovery to this complaint. The single count of the complaint alleged that the failure of the hospital to admit Hartzler for psychiatric care on January 27, 1981, was the proximate cause of his suicide on February 4, 1981.

A first amended complaint was filed on May 19, 1983, and a second amended complaint was filed on July 22, 1983. As in the original complaint, both the first and second amended complaints named Schetz and Bey as respondents in discovery.

On July 28, 1983, plaintiff filed a motion for leave to file a third amended complaint. This complaint added three counts which respectively alleged acts of medical malpractice against Drs. Schetz, Bey, and J. Arber, all three doctors being named as defendants. (Dr. Arber is not a party to this appeal.) Notice of a hearing on the motion for July 29, 1983, was mailed to respondents' attorney on July 26 and an amended notice was hand delivered to respondents' attorney on July 28. Neither respondents nor their attorney appeared at the hearing. The trial court granted plaintiff's motion to file a third amended complaint and the amended complaint — naming respondents as defendants — was filed on July 29, 1983.

Respondents then filed a motion on September 2, 1983, requesting their dismissal from the lawsuit. The motion alleged that plaintiff failed to comply with provisions of section 2-402 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-402), governing the addition of respondents in discovery as defendants. After a hearing on the motion, the trial court determined that plaintiff's notices of the hearing of July 29 were not timely and on October 26, 1983, vacated the order of July 29, 1983.

A new hearing was held on plaintiff's motion to file a third amended complaint naming respondents as defendants. The trial court denied the motion and allowed respondents' motion to dismiss on the grounds that plaintiff failed to secure leave of court to add respondents as defendants within six months after they were named as respondents in discovery. This order was entered on December 1, 1983.

Plaintiff's notice of appeal, filed on December 21, 1983, seeks reversal of both the order of October 26, 1983, and the order of December 1, 1983.

I

• 1 Neither party has raised the issue of whether the order of October 26, 1983, is an appealable order. We have no jurisdiction over non-appealable orders and, therefore, must raise the issue on our own motion. (See Salyers v. Board of Governors (1979), 69 Ill. App.3d 356, 387 N.E.2d 1129.) The order is not appealable for three reasons. First, it is questionable whether the motion to vacate was a "final judgment" under Supreme Court Rules 303(a) and 304(a) (87 Ill.2d Rules 303(a), 304(a)). An order is only appealable if it is final. (In re Estate of Semeniw (1979), 78 Ill. App.3d 570, 397 N.E.2d 64.) Second, if the order was final, it was final as to fewer than all of the parties and thus required an express written finding that there was no just reason for delaying enforcement or appeal. (87 Ill.2d R. 304(a); Goodrich v. City National Bank & Trust Co. (1969), 113 Ill. App.2d 471, 251 N.E.2d 548.) No such finding was made. Third, plaintiff's notice of appeal was filed more than 30 days after the order was entered. The timely filing of a notice of appeal is jurisdictional. Herman v. Hamblet (1980), 81 Ill. App.3d 1050, 401 N.E.2d 973; see 87 Ill.2d R. 303(a).

Plaintiff's appeal from the order of October 26, 1983, is dismissed.

II

The appeal from the order of December 1, 1983, denying plaintiff's motion for leave to file a third amended complaint and allowing respondents' motion to dismiss, is properly before us. The trial court found that plaintiff failed to comply with section 2-402 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-402) in that she did not secure leave of court to add respondents as ...


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