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06/16/89 Henry Williams Et Al., v. Jimmie M. Bolsten

June 16, 1989

HENRY WILLIAMS ET AL., PLAINTIFFS-APPELLANTS

v.

JIMMIE M. BOLSTEN, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

540 N.E.2d 966, 184 Ill. App. 3d 832, 133 Ill. Dec. 100 1989.IL.902

Appeal from the Circuit Court of Cook County; the Hon. Edwin M. Berman, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. MURRAY, P.J., and PINCHAM, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

Plaintiffs, Henry Williams and Andrew Suett, appeal from the entry of summary judgment on the grounds of res judicata in favor of defendant, Jimmie M. Bolsten. We address the issue of whether a dismissal with prejudice under Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)) is an adjudication on the merits under Supreme Court Rule 273 (107 Ill. 2d R. 273). We affirm.

On November 4, 1982, plaintiffs filed a complaint for negligence against defendant and Hubbard Trucking for injuries resulting from an automobile accident. Plaintiffs alleged that at the time of the accident, defendant was driving a vehicle as the agent of Hubbard Trucking, which owned the vehicle, and that defendant's negligent conduct was the direct and proximate cause of plaintiffs' injuries. Plaintiffs did not allege any independent acts of negligence against Hubbard Trucking.

Plaintiffs served defendant with complaint and summons. In defendant's answer, he admitted he was an agent of Hubbard Trucking and denied the remaining allegations of negligence.

Plaintiffs, however, failed to serve Hubbard Trucking. As a result, Hubbard Trucking moved to dismiss pursuant to Supreme Court Rule 103(b), arguing that plaintiffs did not exercise reasonable diligence to obtain service. The trial court granted the motion and dismissed plaintiffs' complaint against Hubbard Trucking with prejudice as required by the rule when a plaintiff fails to exercise diligence after the statute of limitations expires. The order entered also stated, "The case shall continue against the remaining defendant Bolsten." At a later hearing, the trial Judge explained that this language was only included in the order to indicate to the computer operators in the clerk's office that the case remained pending.

Subsequently, defendant moved for summary judgment on the grounds of res judicata. He argued that the Rule 103(b) dismissal with prejudice of Hubbard Trucking, the principal, was an adjudication on the merits as to himself, the agent. On January 28, 1987, the trial court granted summary judgment finding that under Rule 273, a Rule 103(b) dismissal with prejudice of the principal barred the action against the agent.

Plaintiffs filed a motion for reconsideration which was heard on June 3, 1987. At that hearing, plaintiffs filed a motion for leave to amend their complaint. Both motions were denied. Plaintiffs filed a timely notice of appeal.

According to the doctrine of res judicata, an adjudication on the merits is conclusive as to the rights of the parties and their privies and is an absolute bar to a subsequent action against them involving the same claim, demand, or cause of action. (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217.) Supreme Court Rule 273 establishes which dismissal orders are adjudications on the merits. The rule provides:

"Unless the order of dismissal or a statute of this state otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, ...


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