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Penrod v. Sears

OPINION FILED DECEMBER 4, 1986.

CHARLES PENROD, PLAINTIFF-APPELLANT,

v.

SEARS, ROEBUCK & COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Vermilion County; the Hon. Paul M. Wright, Judge, presiding. JUSTICE MORTHLAND DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 6, 1987.

On November 9, 1984, the plaintiff filed a complaint in the circuit court of Vermilion County alleging that he was injured as a result of a fall on November 10, 1982, in a store owned by defendant, Sears, Roebuck & Company. Attached to the original complaint was the following:

"TO THE CLERK OF THE CIRCUIT COURT Please issue summons to be served upon:

Richard Robinson SEARS, ROEBUCK & CO. Sears Tower 3/766 BSC 44-28 Chicago, Illinois 60684."

The clerk did not issue summons as requested. Plaintiff called the clerk's office in March of 1985 and was advised that no summons had issued. Plaintiff again called the clerk's office before June 4, 1985, and was told that he should prepare a summons and send it to the clerk. This was done on June 4, 1985. The summons was never returned by the clerk. An alias summons was prepared by the plaintiff on July 3, 1985, issued by the clerk on July 8, 1985, and served by the sheriff of Cook County on July 19, 1985.

The defendant, on July 30, 1985, filed a motion to dismiss plaintiff's complaint premised upon Supreme Court Rule 103(b) (87 Ill.2d R. 103(b)). That rule reads as follows:

"If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court's own motion."

The defendant's motion was allotted for hearing on August 22, 1985.

The plaintiff, on August 15, 1985, filed his motion for voluntary dismissal pursuant to section 2-1009 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009). That section reads:

"Sec. 2-1009. Voluntary dismissal. (a) The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party's attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause." Ill. Rev. Stat. 1985, ch. 110, par. 2-1009.

The plaintiff gave notice to the defendant that he would ask that his motion be heard on the same day the defendant's motion to dismiss was to be heard.

The defendant then filed a motion to determine priority of hearing between the two motions. The trial court was unable to hear the motions on August 22, 1985, and all pending motions were then scheduled for hearing on September 13, 1985, at 1:30 p.m. On that date the trial court granted plaintiff's motion and dismissed his cause without prejudice. The docket entry on that date also states "motion of deft is denied."

The defendant, on October 11, 1985, filed its motion for reconsideration. This motion was heard by the court on October 25, 1985, at which time the court determined that the motion to dismiss under Supreme Court Rule 103(b) should have been heard before consideration of plaintiff's motion for voluntary dismissal. The court set aside the September 13, 1985, order, granting voluntary dismissal and allotted the defendant's motion to dismiss under Supreme Court Rule 103(b) for hearing December 13, 1985. By letter dated April 29, 1986, the trial court ruled in favor of defendant and dismissed plaintiff's complaint with prejudice. A written judgment order was filed May 7, 1986.

On appeal the plaintiff contends that the trial court erred in: (1) hearing and ruling on defendant's motion to dismiss under Supreme Court Rule 103(b) on December 13, 1985, when the same motion had been denied on September 13, 1985, and that ruling had not been set aside or vacated; and (2) granting defendant's Rule 103(b) motion. The ...


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