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03/30/88 Karen Cummings, Adm'x of v. Richmond H. Simmons Et Al.

March 30, 1988

KAREN CUMMINGS, ADM'X OF THE ESTATE OF MORRIS CUMMINGS, JR., ET AL., PLAINTIFFS-APPELLEES

v.

RICHMOND H. SIMMONS ET AL., DEFENDANTS (PASSAVANT AREA HOSPITAL ASSOCIATION, DEFENDANT-APPELLANT). -- KAREN

CUMMINGS, JR., ET AL., PLAINTIFFS-APPELLEES

v.

RICHMOND SIMMONS ET AL., DEFENDANTS-APPELLANTS



Before any further examination of jurors took place on July 28, 1987, plaintiff orally moved for voluntary dismissal of her entire case. The trial Judge queried whether trial had begun, but dismissed the action without prejudice, finding the court had no discretion to deny plaintiff's motion. A written order was filed July 28, 1987. All defendants appealed the granting of plaintiff's motion for voluntary dismissal. Plaintiff cross-appealed the denial of its motion to amend by interlineation. The cross-appeal was dismissed November 24, 1987.

APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

CUMMINGS, Adm'x of the Estate of Morris

Nos. 4-87-0571, 4-87-0614 cons.

521 N.E.2d 634, 167 Ill. App. 3d 544, 118 Ill. Dec. 352 1988.IL.456

Appeal from the Circuit Court of Morgan County; the Hon. Gordon D. Seator, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

On July 28, 1987, the circuit court of Morgan County granted plaintiff Karen Cummings' motion to voluntarily dismiss her complaint pursuant to section 2-1009 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009). Defendants, Drs. Richmond Simmons, Robert M. Roy, Jr., and Lemuel G. Villanueva, Jacksonville Ob-Gyn Associates, S.C. (Jacksonville Associates), and Passavant Area Hospital Association in Jacksonville, Illinois (Passavant), appeal the trial court's order, contending dismissal was improper because trial of the cause had begun. We are asked to decide whether trial had commenced for purposes of section 2-1009.

The facts are undisputed. Plaintiff's complaint as amended alleged the doctors and Jacksonville Associates negligently failed to treat plaintiff's alleged condition of incompetent cervix which resulted in the premature birth and subsequent death of her child, Morris Cummings, Jr., on June 2, 1982. The counts against Passavant alleged negligence on the theory that the doctors were acting as Passavant's agents. Additional counts directed against each defendant requested damages based upon decedent's pain and suffering, and further requested reimbursement of decedent's medical expenses.

Trial was scheduled for July 27, 1987. On that date, plaintiff filed a motion to amend the complaint by interlineation, requesting to add certain allegations to the counts against Passavant. The Disposition of this motion is unclear from the record. Apparently, it was denied.

On July 27, 1987, jurors were summoned to the courtroom and examined by the court and the attorneys for the parties. Four jurors were sworn that day. The court then recessed and asked the jurors to return the following day.

On July 28, 1987, plaintiff filed another motion to amend the complaint by interlineation, adding certain allegations to the counts against the physicians. The Disposition of this motion is also unclear from the record.

The sole issue presented for review is whether trial had begun for purposes of section 2 -- 1009. Plaintiff essentially argues trial begins when evidence is presented. ...


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