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01/07/87 Melvin Kern Et Al., v. Peabody Coal Company

January 7, 1987

MELVIN KERN ET AL., PLAINTIFFS-APPELLEES

v.

PEABODY COAL COMPANY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

502 N.E.2d 1322, 151 Ill. App. 3d 807, 104 Ill. Dec. 662 1987.IL.4

Appeal from the Circuit Court of St. Clair County; the Hon. Joseph F. Cunningham, Judge, presiding.

APPELLATE Judges:

JUSTICE KASSERMAN delivered the opinion of the court. HARRISON and WELCH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN

Defendant, Peabody Coal Company, appeals from the order of the circuit court of St. Clair County entered on May 24, 1985, granting plaintiffs' motion for voluntary dismissal and from a subsequent order on June 19, 1985, denying defendant's motion to set aside the May 24, 1985, order allowing plaintiffs' motion for voluntary dismissal. Defendant contends that the trial court erred in granting plaintiffs' motion for voluntary dismissal of a non-jury case in order to permit plaintiffs to refile and demand a jury. Additionally, defendant contends that allowing plaintiffs to voluntarily dismiss and refile their case, in order to secure a jury trial to which they would not otherwise be entitled, deprived defendant of due process and equal protection of the law as guaranteed by the constitutions of the United States and the State of Illinois. We affirm.

Plaintiffs, Melvin Kern and Lena Kern, filed their complaint against defendant, Peabody Coal Company, on February 8, 1985. Plaintiffs' complaint sought recovery on the basis of trespass, conversion, and statutory theft, stating essentially that between 1977 and 1979 the defendant had conducted unauthorized mining operations upon the plaintiffs' land. The complaint sought compensatory and punitive damages. Plaintiffs made no jury demand at the time they filed their complaint.

On March 27, 1985, the defendant coal company answered the complaint and admitted that it had conducted unauthorized mining operations upon the plaintiffs' land. In a subsequent request to admit facts, the defendant admitted that it removed approximately 2,300 washed tons of coal from the plaintiffs' property without their consent.

On May 24, 1985, plaintiffs moved for and were granted a voluntary dismissal of their suit without prejudice pursuant to section 2-1009 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1983, ch. 110, par. 2-1009). On that same date plaintiffs filed their second lawsuit alleging the same facts as they did in the first suit; however, this complaint contained a request for jury trial.

On June 3, 1985, defendant moved the court to set aside its May 24, 1985, order of voluntary dismissal; and on June 19, 1985, the court denied this motion.

Defendant first contends that the trial court erred in granting plaintiffs' motion for voluntary dismissal because the effect of the court's order was to allow the plaintiffs to circumvent the requirements for filing a jury demand pursuant to section 2-1105 of the Code (Ill. Rev. Stat. 1983, ch. 110, par. 2-1105.) In substance, defendant urges that plaintiffs were not entitled to a voluntary dismissal as a matter of right in the instant case inasmuch as the granting of plaintiffs' motion allowed them to file a demand for jury trial, which they had waived when they commenced their original action.

We agree with defendant that plaintiffs waived their right to a trial by jury by failing to file a jury demand with the clerk at the time they commenced their original action. (Ill. Rev. Stat. 1983, ch. 110, par. 2-1105.) Nevertheless, we find that plaintiffs had an absolute right to a voluntary dismissal. Section 2-1009(a) of the Code of Civil Procedure provides that "[t]he 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. 1983, ch. 110, par. 2-1009(a).) When notice is given and proper costs paid, the plaintiff's right to a voluntary dismissal without prejudice prior to trial or a hearing is absolute, and the court has no discretion to deny the plaintiff's motion for dismissal. Davis v. International Harvester Co. (1985), 139 Ill. App. 3d 264, 268, 487 N.E.2d 385, 388; Bailey v. State Farm Fire & Casualty Co. (1985), 137 Ill. App. 3d 155, 157, 484 N.E.2d 522, 524.

In Bailey, the trial court granted the defendant's motion to dismiss and granted plaintiff 28 days within which to amend her second amended complaint. When plaintiff failed to file an amended complaint within the 28 days, the defendant filed a motion to dismiss with prejudice. Plaintiff thereafter filed a motion for voluntary dismissal without prejudice which was granted by the court. Plaintiff thereafter refiled her complaint in another county. Defendant appealed the order of the circuit court granting plaintiff's motion for voluntary dismissal and denying defendant's motion to dismiss with prejudice. We held that plaintiff's absolute right to a voluntary dismissal was not changed by the fact that she failed to file her amended complaint within the time given by the court. (Bailey v. State Farm Fire & Casualty Co. (1985), 137 Ill. App. 3d 155, 159, 484 N.E.2d 522, 525.) In Davis, we held that plaintiff's absolute right to a voluntary dismissal without prejudice was not changed by the fact that the trial court had granted defendant's motion to dismiss for failure to answer defendant's discovery request. We held that inasmuch as no trial or hearing had commenced adjudicating the merits of the case, the plaintiff's right to voluntary dismissal still existed. Davis v. International Harvester Co. (1985), 139 Ill. App. 3d 264, 269, 487 N.E.2d 385, 389.

Similarly, in the case at bar we find that plaintiff had an absolute right to a voluntary dismissal. The court has no discretion to deny the plaintiffs' motion, as long as the requirements of section 2-1009 were met. (Bailey v. State Farm Fire & Casualty Co. (1985), 137 Ill. App. 3d 155, 159, 484 N.E.2d 522, 525.) We find the two supreme court cases cited by defendant in its brief and at oral argument to be distinguishable and not controlling in this case. Dillie v. Bisby (1985), 106 Ill. 2d 487, 478 N.E.2d 1338, dealt with the appealability of an order of voluntary dismissal. In Dillie, the Illinois Supreme Court reaffirmed its holding in Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787, wherein it reasoned that if there was no review of an order of voluntary dismissal, there would be no method of determining whether the trial Judge correctly decided that trial or hearing had not begun and therefore correctly entered an order dismissing the case without prejudice. (104 Ill. 2d 302, 306, 472 N.E.2d 787, 789.) However, the ability of a defendant to appeal a trial Judge's finding of the "trial or hearing" issue does not in any way dilute plaintiff's absolute right to voluntarily dismiss his action before such "trial or hearing." We do not agree with defendant in its contention that Dillie signaled a change in the law regarding a plaintiff's absolute right to voluntarily dismiss his action before a trial or hearing. Furthermore, we note the supreme court's statement in Kahle that "[a]ny further limits on the plaintiff's common law rights [to voluntarily dismiss without prejudice] should be enacted by the legislature, not declared by this court." (104 Ill. 2d 302, 308, 472 N.E.2d 787, 789.) Nor does O'Connell ...


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