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04/02/87 Marvin Catlett, v. James Novak Et Al.

April 2, 1987

MARVIN CATLETT, APPELLANT

v.

JAMES NOVAK ET AL. (ILLINOIS CENTRAL GULF RAILROAD, APPELLEE)



SUPREME COURT OF ILLINOIS

506 N.E.2d 586, 116 Ill. 2d 63, 106 Ill. Dec. 786 1987.IL.429

Appeal from the Circuit Court of Cook County, the Hon. Anthony J. Bosco, Judge, presiding.

APPELLATE Judges:

JUSTICE WARD delivered the opinion of the court. JUSTICE SIMON, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD

The plaintiff, Marvin Catlett, filed a complaint in the circuit court of Cook County alleging negligence of the defendants, James Novak and the Illinois Central Gulf Railroad . Novak, claiming the plaintiff was not diligent in serving process, moved to dismiss the complaint with prejudice under Supreme Court Rule 103(b) (87 Ill. 2d R. 103(b)). The plaintiff then moved to voluntarily dismiss his complaint without prejudice pursuant to section 2-1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1009). The circuit court granted the plaintiff's motion and the plaintiff, under section 13-217 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13-217), refiled his complaint. The court allowed the motion to dismiss of the ICG, which contended that section 13-217 was unconstitutional as applied

to the ICG. When the trial court granted that motion, the plaintiff appealed to the appellate court. The appeal was transferred on the plaintiff's motion to this court under Supreme Court Rule 302(a) (103 Ill. 2d R. 302(a)).

The plaintiff's lawsuit is based on personal injuries suffered in an auto accident that occurred December 31, 1979. He filed his original complaint, naming Novak and the ICG as defendants, on December 30, 1981, one day before the two-year statute of limitations for negligence actions would have run (Ill. Rev. Stat. 1981, ch. 110, par. 13-202). Catlett claimed that Novak, an employee of ICG, had negligently driven a company vehicle, causing injury to the plaintiff. Novak was served with process nearly a year later on December 21, 1982; the ICG never was served. Novak filed a motion on February 10, 1983, to dismiss the complaint with prejudice under Rule 103(b), arguing that he was not served until nearly one year after the statute of limitations had run and until almost three years after the accident had occurred. The plaintiff, in response, moved for a voluntary dismissal of his complaint under section 2-1009, which the court granted on April 6, 1983. Nine months later, on January 10, 1984, the plaintiff refiled his complaint pursuant to section 13-217, which allows a plaintiff, after taking a voluntary dismissal, to refile a complaint within one year even if the statute of limitations has already run at the time of dismissal. The ICG was served with process on the refiled complaint three days later on January 13, 1984, and Novak was served on January 17, 1984. On February 14, 1984, the ICG filed a motion to dismiss, alleging that Catlett failed to comply with the statute of limitations. Novak filed a motion to dismiss on March 16, 1984, asserting that Catlett was not diligent in serving process and that section 13-217 was unconstitutional because the plaintiff's invoking of this section defeated Novak's right to rely on the statute of limitations. Both motions were denied on May 15, 1984. The ICG then filed a second motion to dismiss on June 14, 1984, grounded on Rule 103(b) and also asserting that section 13-217 was unconstitutional as applied to the ICG because it violates the ICG's due process rights to rely on the statute of limitations and the protection of that right through Rule 103(b). The trial court granted the ICG's motion to dismiss, finding section 13-217 unconstitutional as applied to the ICG. The court's order did not dismiss the suit as to Novak, and he is not involved in this appeal.

Section 2 -- 1009 in part provides:

"(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. 1983, ch. 110, par. 2-1009.

Section 13 -- 217 in part provides:

"In . . . actions . . . where the time for commencing an action is limited, . . . [and] the action is voluntarily dismissed by the plaintiff, . . . whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff . . . may commence a new action within one year or within the remaining period of limitation, whichever is greater, . . . after the action is voluntarily dismissed by the plaintiff . . .." Ill. Rev. Stat. 1983, ch. 110, par. 13-217.

Supreme Court Rule 103(b) provides:

"(b) 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 ...


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