Appeal from the Circuit Court of Cook County; the Hon. Alan E.
Morrill, Judge, presiding.
JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Plaintiff, appealing from the circuit court's order dismissing her complaint as untimely filed, raises as issues whether: (1) section 24 of the Limitations Act (section 24) (Ill. Rev. Stat. 1981, ch. 83, par. 24a), currently section 13-217 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13-217) applies to wrongful death actions; (2) the instant action is a proper refiling of an earlier action brought in State court; (3) defendants waived the defense of the statute of limitations; and (4) defendants are estopped from asserting the limitations defense.
On July 28, 1976, while incarcerated in the Cook County jail, plaintiff's decedent, Andrew Phillips, was seriously burned. He died of his injuries three days later.
The sinuous path of the litigation which followed must be set out in detail for a full understanding of the case. On July 28, 1978, plaintiff, decedent's mother, filed a three-count unverified complaint in the circuit court of Cook County seeking damages for the pain and suffering, medical and funeral expenses, and wrongful death of her son. Plaintiff voluntarily dismissed this action on May 1, 1980. Ill. Rev. Stat. 1979, ch. 110, par. 52, now Ill. Rev. Stat. 1983, ch. 110, par. 2-1009.
On October 21, 1980, plaintiff filed an unverified complaint in the United States District Court for the Northern District of Illinois, invoking jurisdiction pursuant to 42 U.S.C. § 1983 (1982) (section 1983), alleging that the case was being refiled under section 24 "from a prior state court action voluntarily dismissed by plaintiff on May 1, 1980," and claiming that decedent's civil rights were violated by reason of defendants' failure to properly supervise him while he was incarcerated. On April 7, 1981, plaintiff voluntarily dismissed this Federal action.
On April 30, 1981, plaintiff filed the instant unverified two-count complaint in the circuit court of Cook County seeking damages for her son's wrongful death and medical and funeral expenses. Thereafter, on May 1, 1981, plaintiff was permitted to reinstate her section 1983 case in Federal district court and was granted leave to file an amended complaint. This latest Federal action was dismissed for want of prosecution on August 27, 1981, however.
Defendants filed their answer in the instant State court action on March 4, 1982. On July 25, 1983, the circuit court dismissed the instant action for want of prosecution. Plaintiff filed a motion to vacate the dismissal on August 18, 1983. On September 30, 1983, defendants filed a motion to dismiss and a motion in opposition to vacation of the dismissal for want of prosecution, alleging that the instant action was neither timely nor authorized by section 24. On October 6, 1983, the court vacated its order of dismissal and on November 2, 1983, it denied defendants' motion to dismiss.
Defendants filed a motion to reconsider the denial of their motion to dismiss on November 22, 1983. On February 24, 1984, defendants filed an amended answer pursuant to an agreed order, again raising the issue of timeliness and seeking dismissal as part of this amended answer. On April 23, 1984, the circuit court granted defendants' motion to reconsider and dismissed the case on limitations grounds. This appeal followed.
• 1 Plaintiff initially contends that section 24 applies to extend the two-year period for filing a wrongful death action. (Ill. Rev. Stat. 1983, ch. 70, par. 2(c).) Under that section an action which had been voluntarily dismissed may be refiled within one year of such dismissal, notwithstanding that the original limitations period might have expired in the interim.
The limitations period in the statute creating the action for wrongful death does not merely limit defenses to the right of action, as do general statutes of limitation for common law actions, but circumscribes the right of action itself and is a condition of liability rather than of the remedy alone. (Wilson v. Tromly (1949), 404 Ill. 307, 310-11, 89 N.E.2d 22; Kristan v. Belmont Community Hospital (1977), 51 Ill. App.3d 523, 526, 366 N.E.2d 1068.) Accordingly, a plaintiff prosecuting a purely statutory cause of action must allege facts showing that it was brought within the time prescribed. Demchuk v. Duplancich (1982), 92 Ill.2d 1, 6-7, 440 N.E.2d 112.
In Kristan v. Belmont Community Hospital (1977), 51 Ill. App.3d 523, 366 N.E.2d 1068, the precise issue raised here was considered. While recognizing that the time fixed for filing a wrongful death action is a condition precedent of the right to sue rather than a pure statute of limitations, the appellate court there held that section 24 operated to extend the time for refiling an action where plaintiff fulfilled the condition precedent by filing the original action within two years. (Kristan v. Belmont Community Hospital (1977), 51 Ill. App.3d 523, 526-27. See also People ex rel. L'Minggio v. Parker (1978), 65 Ill. App.3d 296, 382 N.E.2d 613.) Here, too, because plaintiff filed her original complaint within two years of the accrual of the wrongful death cause of action, she was entitled to rely on section 24. Her action was properly dismissed, however, for other reasons which will be presently set forth.
• 2 Plaintiff next asserts that the instant case represents a proper refiling of her prior action, even though she filed a section 1983 action in Federal court in the interim. Defendants insist that the Federal action precludes her right to maintain the instant action. Section 24, where applicable, does provide plaintiff an absolute right to refile; it does not authorize successive refilings of the same action, however, but permits only a single refiling within a year of dismissal. (See Smith v. Chicago Transit Authority (1978), 67 Ill. App.3d 385, 387-88, 385 N.E.2d 62, appeal denied (1979), 75 Ill.2d 594; LaBarge, Inc. v. Corn Belt Bank (1981), 101 Ill. App.3d ...