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04/02/87 Robert L. Swisher, v. John E. Duffy Et Al.

April 2, 1987

ROBERT L. SWISHER, APPELLEE

v.

JOHN E. DUFFY ET AL., APPELLANTS

THE ISSUE IN THIS CASE IS WHETHER JUDGMENT WAS ENTERED ON OCTOBER 1 OR OCTOBER 21, FOR PURPOSES OF CALCULATING THE TIME ALLOWED BY STATUTE FOR REFILING. (SEE ILL. RE

v.

STAT. 1985, CH. 110, PAR. 13-217.) IN CONSIDERING THIS QUESTION WE TURN TO SUPREME COURT RULE 272 (87 ILL. 2D R. 272). RULE 272 PROVIDES AS FOLLOWS:



SUPREME COURT OF ILLINOIS

512 N.E.2d 1207, 117 Ill. 2d 376, 111 Ill. Dec. 570 1987.IL.419

Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Will County, the Hon. Thomas M. Ewert, Judge, presiding

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court. CHIEF JUSTICE CLARK, Dissenting. GOLDENHERSH and SIMON, JJ., join in this Dissent.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

Robert Swisher filed a medical malpractice action in the circuit court of Will County against Dr. John Duffy and St. Joseph's Hospital. On October 1, 1982, prior to trial on the merits, the circuit court granted plaintiff's motion for voluntary dismissal (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009). On October 21, 1982, three weeks after granting the voluntary dismissal, the trial court signed a written order for voluntary dismissal of the case.

Plaintiff refiled this action in the circuit court of Will County on October 21, 1983, one year from the date that the circuit court signed the written order of voluntary dismissal. On December 13, 1983, the trial court granted defendants' motion to dismiss the action on the grounds that it was not filed within one year of the date that the voluntary dismissal was granted, as required by statute. (Ill. Rev. Stat. 1985, ch. 110, par. 13-217.) The appellate court reversed, concluding that the one-year period for refiling did not begin to run until the trial court signed the written order of voluntary dismissal. (Swisher v. Duffy (1985), 139 Ill. App. 3d 691.) We granted defendants' petition for leave to appeal, and we now reverse the appellate court.

Plaintiff filed his original medical malpractice action on August 12, 1981. When the circuit court granted plaintiff's motion for voluntary dismissal on October 1, 1982, the clerk made the following entry on the official docket:

"Charles Hahn for Plaintiff. Mr. Sandberg and Mr. Garbold for the Defendants. Plaintiff's motion for voluntary non-suit is allowed. Case dismissed.

CONNOR/hjk/mbs"

On October 21, 1982, plaintiff's attorney presented a written order of voluntary dismissal which the circuit court signed, and the clerk made the following notation in the official docket:

"Voluntary dismissal order signed. SOS CONNOR/hjk"

There is no indication in the record that when the dismissal order of October 1 was entered the circuit court directed the preparation of a written order or that defendants had notice that on October 21 the written order was presented to the circuit court and signed. Plaintiff refiled his suit on October 21, 1983.

"If at the time of announcing final judgment the Judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, the Judge or clerk shall forthwith make a notation of judgment and enter the ...


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