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10/23/87 the People Ex Rel. the v. James Countryman

October 23, 1987

THE PEOPLE EX REL. THE DEPARTMENT OF REVENUE, PLAINTIFF-APPELLANT

v.

JAMES COUNTRYMAN, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

514 N.E.2d 1038, 162 Ill. App. 3d 134, 113 Ill. Dec. 126 1987.IL.1584

Appeal from the Circuit Court of Boone County; the Hon. David A. Englund, Judge, presiding.

APPELLATE Judges:

JUSTICE HOPF delivered the opinion of the court. INGLIS and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF

The plaintiff, Illinois Department of Revenue (Department), appeals from the order of the circuit court which denied its motion to reinstate its complaint against the defendant, James Countryman, after the court had dismissed the complaint for want of prosecution. On appeal, the plaintiff contends that the court abused its discretion since the record demonstrated that the plaintiff was actively pursuing discovery in this matter and, also, that the attorney's failure to appear was inadvertent. For the reasons set forth below, we reverse.

On October 6, 1978, the plaintiff filed a complaint against the Countryman Lumber Company seeking to collect unpaid taxes, penalties and interest pursuant to the Retailers' Occupation Tax Act (Ill. Rev. Stat. 1977, ch. 120, par. 440 et seq.) and section 8-11-1 of the Municipal Retailers' Occupation Tax Act (Ill. Rev. Stat. 1977, ch. 24, par. 8-11-1). The court entered a default judgment against the corporation on April 27, 1979. The corporation had been dissolved by the Secretary of State prior to the default judgment, on December 1, 1978.

On May 22, 1981, the plaintiff filed an action against James Countryman, individually, and contended that he was personally liable for the above judgment pursuant to section 13 1/2 of the Retailers' Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 452 1/2). On June 16, 1981, the original summons was returned "not found," although service was obtained by serving the Secretary of State on February 2, 1982. The defendant entered an appearance and filed an answer to this complaint. The plaintiff then filed interrogatories on January 11, 1983. In response, the defendant filed objections to the interrogatories. Fifteen months later, the case was placed on the peremptory call. At that call, the plaintiff voluntarily dismissed the case.

On May 18, 1984, the plaintiff filed a complaint against the defendant seeking to collect unpaid taxes pursuant to section 5 of the Retailers' Occupation Tax Act (Ill. Rev. Stat. 1985, ch. 120, par. 444). The complaint noted, inter alia, that the court had entered a judgment of default against the Countryman Lumber Company, of which the defendant was the president, in the amount of $10,280 plus costs. It was further alleged that the defendant had become personally liable for the taxes following the company's dissolution on December 1, 1978. The complaint demanded judgment against the defendant for the sum of $14,431 in unpaid taxes plus penalties and interest.

On July 11, 1984, the court denied the defendant's motion to dismiss the complaint for failure to file it within the applicable statute of limitations. On February 20, 1985, the court denied the defendant's second motion to dismiss, which presented the same argument. On March 13, 1985, the defendant filed a third motion to dismiss which argued that the complaint failed to set forth facts sufficient to allege wilful conduct. On July 30, 1985, the court granted the defendant's motion to dismiss. Thereafter, the plaintiff filed a motion to reconsider which the court granted on August 14, 1985. Subsequently, the case was placed on the trial call for October 23, 1986. On that day, with the plaintiff not attending, the case was removed from the trial call and continued until December 3, 1986, for status. The record sheet for October 23, 1986, indicates that the defendant's counsel was to notify the plaintiff of the December 3, 1986, status call.

At the December 3, 1986, status call the plaintiff failed to appear, and the court dismissed the case for want of prosecution. On January 29, 1987, the court denied the plaintiff's motion to reinstate. The plaintiff then filed this timely appeal.

On appeal, the plaintiff argues that the court erred when it denied its motion to reinstate in view of evidence that counsel had been diligently proceeding in the case and counsel's failure to attend the December status hearing was inadvertent.

The determination that there has been a lack of diligent prosecution warranting dismissal is within the sound discretion of the trial court and should not be disturbed on appeal unless there has been an abuse of discretion. (In re Marriage of Hanlon (1980), 83 Ill. App. 3d 629, 632, 404 N.E.2d 873.) Dismissal for want of prosecution, however, is error unless the party has been guilty of inexcusable delay in prosecuting the suit. (Crawford v. Crawford (1976), 39 Ill. App. 3d 457, 463, 350 N.E.2d 103; Polowick v. Meredith Construction Co. (1975), 29 Ill. App. 3d 1092, 1097, 332 N.E.2d 17.) Moreover, a dismissal for want of prosecution should be set aside where a satisfactory explanation of the apparent delay has been given, there has been no intentional or wilful disregard of any directions of the court, and it does not appear that further postponement of a controversy on its merits would result in prejudice or hardship to any of the parties. In re Marriage of Dague (1985), 136 Ill. App. 3d 297, 299, 483 N.E.2d 322.

The inherent power of Illinois courts to dismiss a lawsuit for want of prosecution is based on the necessity of preventing undue delays in the Disposition of pending cases and avoiding congestion in the progress of the trial calendars. (Bender v. Schallerer (1973), 9 Ill. App. 3d 951, 952-53, 293 N.E.2d 411.) This power, however, must be exercised by giving more weight to basic concepts of fundamental fairness and Justice than to procedural matters. (Deardorff v. Decatur & Macon County Hospital Association (1969), 111 Ill. App. 2d 384, 388, 250 N.E.2d 313.) Whether substantial Justice is being done between the litigants and whether it is reasonable under the ...


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