for failure to state a claim, a "court may enter appropriate orders either to permit or require pleading over or amending or to terminating the litigation in whole or part." Crigler's motion plainly sought termination of the action.
Nevertheless, Crigler maintains that the March order amounted to a dismissal of the case without prejudice for want of prosecution based on the fact that he did not refile the action with an amended complaint within the 14 days specified by the court. Yet, if that truly characterized the underlying basis for the March order, then Crigler's motion to have the dismissal order made "final and appealable" under Section 2-615 and the language in the March order specifying that the dismissal was final and appealable would be meaningless. Under Illinois law, a dismissal without prejudice for want of prosecution does not terminate litigation and therefore cannot result in an appealable order, since there remains the one year time for refiling provided by the saving statute. See Wold v. Bull Valley Management Co., 96 Ill.2d 110, 449 N.E.2d 112, 70 Ill. Dec. 238, cert. denied, 464 U.S. 936, 104 S. Ct. 345, 78 L. Ed. 2d 311 (1983); Flores v. Dugan, 91 Ill. 2d 108, 435 N.E.2d 480, 61 Ill. Dec. 783 (1982). Cf. Arnold Schaffner, Inc. v. Goodman, 73 Ill. App. 3d 729, 392 N.E.2d 375, 29 Ill. Dec. 818 (1979). Thus, if the March order of dismissal was without prejudice and based on a want of prosecution by Crigler, then the order could not have been final and appealable.
Furthermore, the simple fact that Crigler did not file an amended complaint does not translate automatically into a want of prosecution, just as a failure to amend does not in and of itself constitute an election to stand on the original stricken complaint. See Harl, 679 F.2d at 127 (" Brainerd suggests that it is not the failure to amend, but the taking of an appeal or other action challenging the trial court decision that constitutes an election to stand on a stricken complaint."). Under the circumstances of this case, the fact that Crigler failed to refile cannot be regarded as a want of prosecution, but serves instead as evidence of Crigler's affirmative prosecution of his motion to have the dismissal made final and appealable. The option of refiling, granted by the court, was an alternative to entry of the order that Crigler sought, and obtained.
We therefore find that the sequence of events establish that Crigler elected to stand on the amended complaint that had been dismissed and that the March order of dismissal must be considered a final adjudication on the merits barring any subsequent suits arising out of the same transactions. The fact that Crigler ultimately chose not to appeal, or simply neglected to appeal, does not change the finality of the judgment entered against him, but rather renders the decision all the more final.
We grant the defendants' motion for summary judgment on the grounds that Crigler is precluded from bringing this action by state court rulings in a prior suit between these parties dismissing a complaint identical to the complaint filed in this Court, and entering final judgment against Crigler on the merits of the cause of action. Because we find that Crigler is precluded from bringing this action, we do not reach the second grounds for summary judgment which reassert the arguments previously accepted by the state court concerning the merits of Crigler's action. It is so ordered.
Dated April 23, 1990