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07/23/87 Mary Alice Griffin Et Al., v. Area E-7 Hospital

July 23, 1987

MARY ALICE GRIFFIN ET AL., PLAINTIFFS-APPELLEES

v.

AREA E-7 HOSPITAL ASSOCIATION, D/B/A SARAH BUSH LINCOLN HEALTH CENTER, DEFENDANT-APPELLANT. -- MARY ALICE

GRIFFIN ET AL., PLAINTIFFS-APPELLEES

v.

LEWIS ADKINS, DEFENDANT-APPELLANT (AREA E-7



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Hospital Association, d/b/a Sarah

Bush Lincoln Health Center, Defendant)

Nos. 4-86-0821, 4-87-0039 cons.

511 N.E.2d 256, 158 Ill. App. 3d 720, 110 Ill. Dec. 421 1987.IL.1055

Appeal from the Circuit Court of Coles County; the Hon. William J. Sunderman, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. McCULLOUGH and LUND, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

Plaintiffs, Mary Alice Griffin and Harvey O. Griffin, brought an action in the circuit court of Coles County to recover damages occasioned by the alleged negligent medical care and treatment rendered to Mary Alice Griffin by the defendants, Lewis Adkins and Area E-7 Hospital Association, d/b/a Sarah Bush Lincoln Health Center. Two years after filing suit, plaintiffs filed a motion for voluntary dismissal pursuant to section 2-1009 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009). The defendants objected to the plaintiffs' motion but the trial court found that it had no discretion in ruling upon a motion filed under section 2-1009 and dismissed the suit without prejudice. Defendants appeal claiming section 2-1009 is unconstitutional because it constitutes an impermissible infringement upon the exclusive authority of the judiciary to administer the courts. We affirm.

On April 11, 1984, plaintiffs filed a four-count complaint against defendants seeking damages for personal injuries suffered by Mary Alice Griffin and for Harvey O. Griffin's subsequent loss of consortium due to alleged medical malpractice on the part of defendants. Over the next two years, the parties engaged in extensive discovery and the plaintiffs took several evidence depositions. Beginning in July 1986 several rulings in regard to discovery were made by the trial court adversely affecting the plaintiffs. A motion for summary judgment was also sought by defendant hospital which was denied. The case was set for trial on December 15, 1986.

On November 5, 1986, the plaintiffs filed a motion seeking to voluntarily dismiss their complaint without prejudice pursuant to section 2 -- 1009. At the time the motion was filed, there were no pending motions to dismiss or motions for summary judgment. After hearing arguments of counsel, the court granted the plaintiffs' motion over the objection of defendants on November 12, 1986.

The applicable provisions of section 2 -- 1009 of the Code of Civil Procedure read as follows:

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. Thereafter the plaintiff may dismiss, only on terms fixed by the court (1) upon filing a stipulation to that effect signed by the defendant, or (2) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof. After a counterclaim has been pleaded by defendant no dismissal may be had as to the defendant except by the defendant's consent. Ill. Rev. Stat. 1985, ch. 110, par. 2-1009(a).

Defendants' contention that section 2 -- 1009 is an unconstitutional infringement upon the power of the judiciary to administer the courts is based on the authority of the Illinois Constitution, which provides that "[the] judicial power is vested in a Supreme Court, an Appellate Court and Circuit Courts." (Ill. Const. 1970, art. VI, sec. 1.) The exclusivity of this grant of judicial power is reenforced, according to defendants, by the separation of powers clause in the constitution. It reads: "The legislative, executive ...


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