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Reagan v. Baird

OPINION FILED DECEMBER 20, 1985.

LURA JEAN REAGAN, A/K/A LURA JEAN BAIRD, PLAINTIFF-APPELLANT,

v.

GLENN A. BAIRD ET AL., DEFENDANTS (OMALEE BAIRD, DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Vermilion County; the Hon. Paul M. Wright, Judge, presiding.

JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

The plaintiff, Lura Jean Reagan (Reagan), appeals the dismissal with prejudice of her amended complaint to set aside an alleged fraudulent conveyance by the defendants Glenn and Wanda Baird to defendant Omalee Baird (Omalee) with the alleged objective of preventing Reagan from collecting past-due child support payments from the defendant Glenn Baird.

Omalee's motion to dismiss this appeal, taken with the case, urges that this court has no jurisdiction to consider whether the circuit court properly dismissed that amended complaint because the circuit court has not yet entered a final appealable order in this cause and has not made a finding pursuant to Supreme Court Rule 304(a) (103 Ill.2d R. 304(a)), that there is no just reason for delaying enforcement or appeal of the order of dismissal. A consideration of the history of the proceedings below is essential to resolution of the question of whether this case is properly before us.

Reagan filed her initial complaint requesting cancellation of the alleged fraudulent conveyance from Glenn and Wanda to Omalee on May 10, 1983. Following the dismissal of that complaint on Reagan's stipulation on August 8, 1983, Reagan, on September 9, 1983, filed an amended complaint premised on the same cause of action sought to be stated in her initial complaint.

On July 13, 1984, the circuit court dismissed Reagan's amended complaint on Omalee's motion. Reagan subsequently filed a timely notice of appeal from that order. However, on October 31, 1984, we dismissed the appeal as premature, as the amended complaint was dismissed upon the motion of Omalee, and was effective only as to her but there was no finding pursuant to Rule 304(a).

On November 10, 1984, Reagan filed a motion for reconsideration of the circuit court's July 13, 1984, decision, as well as a motion for a finding pursuant to Rule 304(a) that there was no just reason for delaying enforcement or appeal of that order. The latter motion alleged that the locations of Glenn and Wanda Baird were unknown to Reagan. The circuit court denied both of the above motions on January 10, 1985.

On February 5, 1985, Reagan filed a pleading entitled "Motion to Dismiss and for a Special Finding." In that motion, Reagan alleged that upon due diligence, Glenn and Wanda Baird could not be found, and that they had not been served with process. On this basis, Reagan requested that the action be dismissed without prejudice as to Glenn and Wanda and that the court find that "no just reason now exists to delay the appeal." On February 13, 1985, the circuit court dismissed the cause without prejudice as to Glenn and Wanda, but did not expressly rule upon Reagan's request for a finding that there was no reason to delay appeal. This appeal followed.

• 1 As the basis for her argument that we have no jurisdiction to consider this appeal, Omalee points out that there is no finding pursuant to Supreme Court Rule 304(a) that there is no just reason for delaying enforcement or appeal of the circuit court's order of July 13, 1984, and maintains that in the absence of such a finding, the circuit court's order of dismissal is not final. She contends that only a Rule 304(a) finding could confer the requisite finality on the July 13, 1984, order, because the order was entered "without prejudice" as to Glenn and Wanda and thus did not adjudicate the rights and liabilities of all of the parties or dispose of the entire litigation, and because Glenn and Wanda Baird are necessary parties, without the participation of whom the action cannot effectively be joined. We disagree and hold that we have jurisdiction to consider the merits of the question presented by this appeal.

Initially, we note that the voluntary dismissal of parties defendant to a lawsuit at the request of the plaintiff, or in other words a non-suit as to such parties, places the litigation in the same posture as if no suit had ever been filed with respect to the nonsuited defendants, and that after such action, the cause is in the same condition as if suit had originally been brought against only the remaining defendant(s). (See Cook v. Stewart McKee & Co. (1945), 68 Cal.App.2d 758, 157 P.2d 868.) Moreover, contrary to Omalee's contention, a voluntary non-suit constitutes a termination of the action with respect to the parties nonsuited, even where, as here, and as is usually the case, the action is dismissed "without prejudice" as to the nonsuited parties. Ill. Rev. Stat. 1983, ch. 110, par. 2-1009; 27 C.J.S. Dismissal & Non-suit sec. 39, at 376-77 (1959).

The Historical and Practice Notes following section 2-1009 of the Code of Civil Procedure (Ill. Ann. Stat., ch. 110, par. 2-1009, Historical and Practice Notes, at 417 (Smith-Hurd 1983)) describe the ambit and purpose of this section of the statute stating:

"But where this section's terms are met, the rights it gives are absolute, and the dismissal must be granted even though the moving party shortly thereafter commences a new action substantially similar to the one just dismissed. [Citations.]"

In In re Marriage of Wright (1981), 92 Ill. App.3d 708, 710, 415 N.E.2d 1196, 1199, vacated on other grounds (1982), 89 Ill.2d 498, 434 N.E.2d 293, the court noted that the reference "without prejudice" does not refer to prejudice to the rights of the defendant but rather:

"The phrase "without prejudice' is an ancient one, and signifies only that the dismissal has been taken with no decision on the merits of the case, and therefore without prejudice to refiling. See People ex rel. Waite v. Bristow (1945), 391 Ill. 101, 110, 62 N.E.2d 545."

The two cases cited in support of Omalee's position as to this issue (Arnold Schaffner Inc. v. Goodman (1979), 73 Ill. App.3d 729, 392 N.E.2d 375; Peterson v. Tazewell County (1975), 29 Ill. App.3d 915, 330 N.E.2d 888) do not require a different conclusion, for both cases simply hold that for an order of dismissal to be final and appealable, it must be entered "with prejudice" as to at least some of the parties or claims. This situation pertains in the ...


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