Appeal from the Circuit Court of Cook County; the Hon. Edwin
Berman, Judge, presiding.
JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 8, 1985.
Defendant George Hansen appeals from the order of the Cook County circuit court entered August 10, 1983, which vacated nunc pro tunc a prior Cook County circuit court order of May 13, 1980, dismissing for want of prosecution (DWP) the wrongful death claim of plaintiff Tony Gentile, administrator of the estate of Anthony Gentile. Defendant also appeals from the trial court's subsequent denial of his motion for reconsideration of the court's August 10 nunc pro tunc order. Defendant raises three issues for our review:
(1) whether the trial court committed reversible error in vacating the May 10, 1980, DWP order over three years after its entry on the ground that the dismissal order was void;
(2) whether the trial court committed reversible error in vacating the order through the entry of a nunc pro tunc order;
(3) whether the doctrine of laches bars plaintiff from attacking the dismissal order under the facts and circumstances of the case at bar.
We find that the trial court's order vacating the DWP order and denying defendant's motion for reconsideration are interlocutory orders and dismiss the action for lack of appellate jurisdiction.
Plaintiff's wrongful death claim, filed October 18, 1974, alleged that Anthony Gentile died as a result of gunshot wounds inflicted by George Hansen. A separate count of the complaint, predicated on a duty to control dangerous weapons, alleged that Richard Hansen was liable for the shooting death of Anthony Gentile because he knew or should have known that George had kept the handgun, with which he allegedly shot Gentile, in the house which Richard and George shared. Richard Hansen was subsequently dismissed from the action and is not a party to this appeal. Consequently, his actions in the case will not be restated here.
In 1974, the only pertinent event in the case was the court's order of November 21 which stayed discovery proceedings for 90 days as to George and extended by 90 days the time for him to answer or otherwise plead. The court granted this stay and extension because George was then facing prosecution for the murder of Anthony Gentile and had asserted his privilege to be free from self-incrimination as grounds for his refusal to submit to discovery or answer plaintiff's complaint.
In 1975 George twice obtained substitute counsel, filed non-responsive answers to plaintiff's interrogatories which again asserted his fifth amendment right, and obtained another court order which again extended, by 120 days, his time to answer or otherwise plead to plaintiff's complaint.
In mid-1976 George obtained another court order which extended for 120 days his time to answer and stayed discovery proceedings for the same period. He subsequently made a similar motion for such relief over a year later in 1977, but the record contains no court disposition of this motion.
George took no action in the case during 1978; the court granted several general continuances during this period, and ruled on matters pertaining to Richard Hansen's dismissal from the action.
In 1979 the case was again continued generally on several occasions. The only indication in the record of George's participation was a motion in December to stay proceedings as to him because he was serving a sentence based on his conviction of murder and had not yet exhausted his appellate rights to challenge this conviction. The court continued all pending matters for a status report for four months' time, until May 1980. On May 13, 1980, the court entered its order dismissing ...