*1 acceptance of an implied the possibility We do not 72.) preclude However, as held certain circumstances. established being under cited, single previous of a acceptance cases find that above we cannot aof an implied acceptance renewal in itself constitute sufficient Not only the silence of the solely second renewal offeree. based course show previous mailing policy first renewal insufficient re- no evidence parties, plaintiff presented between the dealing similar trade if situations garding practice, any, the customary de- feels abused presented here. It is obvious but a bought had another policy, fendant did not inform him that he and there would call this fact would have revealed telephone simple incurred the loss caused been to have have no reason for his unwarranted assumption. Court of is reversed. Montgomery County of the Circuit judgment
Reversed.
EBERSPACHER, concur. JONES, P. J., al., Zamir Bavel et L. Cavaness, Admr. Plaintiffs-Appellees, Estate of Lillian Defendant-Appellant. D. 71-254; (No.
Fifth District *2 MORAN, dissenting.
G. Gomric, Hamilton, Belleville,
Listeman, & Bandy (James J. for appellant.
counsel,) Marion, appellees. Mitchell and both of Armstrong, W. A.
J. of the court: Mr. delivered the opinion CREBS JUSTICE County Court of Williamson Plaintiffs filed an action in the Circuit damage wherein injuries property they sought recovery dismiss a motion to incurred in an Defendant filed automobile collision. made denied, defendant whereupon which motion was complaint to appeal 308 for application permission Court Rule pursuant Supreme ap- Defendant’s his motion to order dismiss. interlocutory denying sole defendant’s plication was and this followed. It is appeal claim of Limitations. here is barred the Statute were facts the case are as follows: On July involved in an driven automobile accident wherein car which was by one and in collided which the other was a passenger Rausch, driven the State automobile Lillian resident of D. of Indiana. Lillian Rausch died and her opened in the collision estate was in Indiana on On April 1967 and closed July accident, two filed suit in the exactly years Circuit Court of St. Clair as defendants the Estate of County naming Lillian its executors and heirs. By D. reason of diversity *3 the cause was to Federal District Court citizenship transferred the individual who was served filed a motion to dismiss" that the Statute of Limitations had alleging run and that the plaintiffs had file failed to a complaint against within any proper party 18, the time by said On Statute. 1971 the Federal Dis- January trict Court held that the suit was void ab initio virtue of by plaintiffs’ failure to name a proper party-defendant and the complaint there- was fore No further action taken in dismissed. was the Federal court. How- ever, 21, on April plaintiffs sought defendant, the appointment of the Public Administrator of Williamson and County, over his objection issued, letters of administration were whereupon suit was immediately filed. then Defendant filed motion to dismiss the complaint on the that it barred grounds was the Statute of by Limitations which motion denied was and he now appeals.
The cause of action here involved 14, 1967, accrued on July accident, date of the and the suit before us was filed three approximately and ten years months that after date. The Illinois Statute of Limitations provides that for an actions to the person shall be commenced within two next after the years cause of action accrued (Ill. Rev. Stat. 1967, 83, ch. 15) sec. that actions for an injury done to property shall be commenced within five next after years the cause of action 83, accrued Rev. Stat. ch. sec. It is (Ill. 16). therefore obvious that I and which relate Counts II of plaintiffs’ complaint, more Limitations unless one or were barred the Statute of injuries, time in they of the in that Act extended the contained exceptions that Count III of the complaint, were It also clear required plead. barred, it been which deals with is not damage, having claimed property filed within the time limited law. relied period
One of the exceptions general limitation Act wherein is contained in section 20 of the Limitations by plaintiffs bemay brought it is that an action person against “If a whom provided dies of time limited the commencement before the expiration barred, thereof, survives, and is not otherwise and the cause of * * * after administrators be commenced may action, of the time limited for the commencement expiration * * * nine months after the of letters administration.” issuing and within (9) (Il claim 20.)- Plaintiffs that Rev. Stat. l. us and in the case now before that their personal this exception prevails their failure to the suit cannot be barred for before injury action initiate al It is two-year limitation. their general period position until expired, this two-year didn’t though they bring within nine months after April did bring (9) they administrator, that the suit the date was appointed defendant This overlooks the fact that on argument was therefore not barred. ten three months (3) prior approximately years (10) to. Illinois, administrator for the estate of
defendant’s appointment Indiana, her place residence appointed the deceased defendant Section 20 makes no distinction as to where estate. and the situs her issued, letters, to issuance of it referring shall be simply letters initiate their suit within nine months did not is clear that the plaintiffs opened. estate was from the date Indiana to determine required
It for us were necessary is not whether from the date the letters of administration nine months file the effect of issued, reducing applicable which would have were two- for it clear failed to file either limitation period, issued or letters were within two within nine months after years accrued and are therefore barred of action re- after the cause applied. limitation of which gardless *4 statutory section relief from 24(a) provides also claim that
Plaintiffs of That section of the Limitations. provides Statute defendant’s assertion «a *# nonsuited, the action is or dismissed for or if the plaintiff then, not the time limitation for whether or bringing want of prosecution suit, of such plaintiff, during pendency expires such action .
637 within a action heirs, or commence new executors administrators may limitation, whichever one or of remaining within period * * * is dis is nonsuited or after the greater, plaintiff 24(a). sec. of prosecution.” for want Ill. Rev. Stat. missed there must in tort It is axiomatic that in order have a civil suit to prime be and and likewise clear a a defendant it is defendants, they be requisite as to whether or parties, to be sued either or the capacity a natural artificial and that person have not exists in dead or persons in not those who are only being Parties, case the I.L.P., In the instant yet (29 164.) been bom. p. suit its executors initiated Lillian D. was “Estate of the above and heirs”. These named within “parties” defendants are not a complete definition and suit was therefore the under consideration N.E.2d nullity. 411.) v. 122 259 (Compare Long, Ill.App.2d Reed therefore, As law, a action base matter of there was no which upon one-year 24(a). extension A case was section provided by it was a existence cannot or nonsuited for legally never be dismissed upon. from its acted We incapable legally being nullity inception realize for extending bringing time purpose has nonsuited is action been commenced and has been disposition litigation facilitate merits and to avoid frustration upon Assurance grounds unrelated to Northern (Roth merits. however, no Here, Ill.2d where there was de 415.) N.E.2d was fendant there no action heard the merits. Fail capable of being ure to name a defendant is not a mere or form procedure technicality but constitutes rather total absence of a cause of action. The statute to a an old action referring “new” filed pre-supposes prior here, law, original within limitation matter of there period as no It did prior such action. is therefore evidence that not a “new” action filed the before complaint commence when now us, action, the only but rather which action was filed commenced well beyond the limitation allowed. find that expressed, the views herein we the trial court erred
Under that portion defendant’s motion to dismiss of plaintiffs’ denying personal that relates to their actions. Defendant’s complaint mo- not, however, differentiate claims for in- did between tion for it is clear jury damage and that that a valid action property for limited damage was commenced the time property such actions. The trial court motion judgment defendant’s denying III of complaint, dismiss is therefore affirmed to Count plaintiffs’ portion property dam- being stating *5 638 to Counts I and said
age, reversed as II of which are purported personal that are barred the Statute by actions Limitations and therefore dismissed. properly in
Affirmed part, reversed part.
EBERSPACHER, concurs.
Mr. GEORGE dissenting: MORAN J. JUSTICE The holds that the majority rely cannot the upon exception to the general Act Limitations contained in section 20 Stat. Rev. (Ill. 1967, 83, ch. because an for the the par. administrator estate of 20) deceased was in Indiana and did not their appointed initiate suit within nine months from the date the Indiana estate was opened. In so doing theory the relies not the majority advanced by in the trial appellant court in this court. should,
If we decide this case of section 20 as plain we language Tunnell, arewe bound by the it Roberts v. 165 interpretation given Ill. at the court said 632-633:
“The 7, 1880, note due became and but for the death February of the maker time an limited for action would have bringing expired 5, 1887,— Allen died February George B. June before the of that time. The cause of action on the expiration survived, note might against be administrator brought whenever he be appointed should None was until appointed. 23, 1894, the bill August was filed foreclose the mortgage in less than one from such These appointment. bring facts year the note within the 19 of the act in provision regard section to limitations, ‘If force as follows: a person against may whom an be brought action dies before expiration thereof, time limited the cause of for commencement survives, action action be commenced his execu- may time, tors or after the of that expiration administrators and within one or of year issuing testamentary after the letters administra- section, tion.’ this where a cause action By survives and debtor, not at death of the the creditor is one barred issued in of administration are which bring letters such action.” in regard
Nor do I 24A agree majority’s holding section Rev. Stat. par. 24A). (Ill.
Section 24A in situations in applies brought of time or initial statute and the proper period given plain- v. court. Roth the initial jurisdiction want of tiff is nonsuited for N.E.2d 415. 32 Ill.2d Ltd. (1965), Northern Assurance non-suiting 24A applies Section holding Court Supreme at 42-43: said in Roth want of jurisdiction statutory contention first the defendants’ “We consider of an dismissal does not include to a nonsuit’ reference was con- same contention In 1942 this of jurisdiction. want for the Appeals Court of Circuit rejected by sidered and Co. Ohio Insurance (7th in Sachs National seventh Circuit Life authorities, carefully reviewing 134. After Cir.) 131 F.2d *6 remedial, intent to legislative a said, reflecting court ‘The act is faith from com- brings good who protect party merits merely procedural loss of relief on the because plete construed, so be liberally Such statutes should defect. remedial * * * of the legislation. as to destruction of the prevent purpose nonsuit and for want of jurisdiction In both common law dismissal order due some procedure proof defect The a on the obvious prevents purpose trial merits. and it merits give opportunity try assume that the meant to
illogical legislature prevent hardship nonsuit, in the but not case of of dismissal want only perti- intimated jurisdiction. contrary clearly decisions; that, nent them we are bound. It follows had commenced their new action within a year after first been dismissed of jurisdiction, one had for want were not barred.’” filing
Other Illinois cases have of new actions supported under Section 24A been dismissed original when has for want of Breault, jurisdiction. In re Estate Ill.App.2d 251 N.E.2d 910; Carson, Pirie, Factor Scott and A. F.2d 141.