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12/05/89 Lloyd Wyrick, v. Time Chemical

December 5, 1989

LLOYD WYRICK, PLAINTIFF-APPELLANT

v.

TIME CHEMICAL, INC., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

548 N.E.2d 524, 191 Ill. App. 3d 1041, 139 Ill. Dec. 139 1989.IL.1875

Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE BILANDIC delivered the opinion of the court. HARTMAN and SCARIANO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

Plaintiff, Lloyd Wyrick, brought this action for personal injuries against defendant, Time Chemical, Inc. (hereinafter defendant Time), and others. On August 20, 1987, pursuant to the motion of defendant Time, plaintiff's cause of action was dismissed "for his failure to appear for a discovery deposition." Plaintiff's motions to vacate and reconsider the dismissal were denied. Plaintiff appeals.

Defendant Time's motion to dismiss plaintiff's cause of action alleged that plaintiff's deposition was "continued on eleven occasions" and that plaintiff "failed to appear" at a scheduled deposition on April 30, 1987. The motion was not supported by any affidavits.

On August 20, 1987, plaintiff's counsel appeared before Judge Nicholson to oppose defendant Time's motion. He asked the clerk to hold the motion while he attended to another hearing in a different courtroom. Counsel for defendant Time appeared shortly thereafter. The motion was passed and recalled later, prior to the time that counsel for plaintiff returned. Essentially, counsel for Time advised the court of the contents of his motion that "[t]he deposition has been set eleven times" and the deposition was set for April 30, 1987, and plaintiff "didn't show up."

"THE COURT: I'll grant your motion, counsel.

MR. REYNOLDS: Thank you.

THE COURT: Maybe now we will hear from them.

MR. REYNOLDS: Thank you."

The court then entered the order dismissing plaintiff's cause of action "for his failure to appear at a discovery deposition."

Shortly thereafter, counsel for plaintiff returned and discovered that his case against defendant Time was dismissed. The court asked the clerk whether in fact a hold had been placed on the motion. The clerk replied, "es, we did. On the third time other counsel stepped up * * and wanted to proceed." Judge Nicholson understood the problems of busy lawyers, crowded ...


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