*1 informed the underlying Furthermore, transaction. although Harris testified that she be, asked Moore how much a license would and that $500, he replied conversation, true, this even if does not establish that a sale And, occurred. although Harris testified that she purchased fictitious license from Cokely and Richardson later that day, she did not testify that Moore was in any involved in way that transaction. Rather, Harris testified that Moore would not agree to the sale of a fictitious Thus, license on either day. the testimony did not establish that Moore sold a license or that he was aware of such sale. any Moore cannot be said to have failed to report a sale which oc- never curred, nor can he be said have failed to report a sale of which he was not aware.
We find that the trial court properly reversed the Commission’s decision to discharge Moore based on dereliction of his duties as a Public Service Supervisor. concluded, Because we have so we need not determine whether there was a sufficient basis for the conclusion that cause for discharge existed. reasons,
For the foregoing judgment of circuit court of Cook County affirmed.
Judgment affirmed. RAKOWSKI,JJ.,
EGAN and concur. al., SHALLOW, Plaintiffs-Appellants, MARVIN JONES et v. PAUL Defend- (James al., ant-Appellee Defendants). et Williams (4th Division) First District 1 - 89-1941 No.
Opinion July
JIGANTI, J., dissenting. Mazar, Werner, Chicago,
Adrian E. of Chase & of appellants. for Miller, Merletti, Taylor, Sprowl, Hoffnagle Chicago (James & R. Picker, counsel), appellee. for
JUSTICE JOHNSON delivered the opinion the court: Plaintiffs, Jones, Ross, Marvin Lisa Logan, Johnnie Lee bring this from the appeal circuit court’s dismissing order their cause of Shallow, action against defendant, Paul for failure to exercise due dili- gence in obtaining process service on defendant Shallow. Plaintiffs claim that the trial court dismissing abused its discretion in action.
We affirm. underlying action arose when sustained plaintiffs allegedly 14, in on personal an automobile accident occurred injuries July 22, 1987, 1985. was May complaint On was and summons is- sued to served on Shal- given by be defendant Shallow at to plaintiffs low accident scene. Summonses were also directed codefendants, on but they to be served Shallow’s two not involved in this summons directed to Shallow was returned “not appeal. served” for lack of contact on June three Approximately later, at months an alias summons was directed defendant issued bearing This returned the notation another address. summons was also began investigation finding “N.S.” then an in hopes Plaintiffs traced, One it defendant’s correct address. but address. six months after Finally, just failed reveal defendant’s over unserved, the alias sent letter to plaintiffs summons was returned a of State defendant’s current address. Secretary requesting Within weeks, the of State’s office a Secretary supplied plaintiffs two defendant’s correct address. also indicated report giving report that a license at driver’s had been issued that address A alias plaintiffs the date filed this action. second summons prior 1988, June 13 months after com was served on defendant on later, was filed. One month defendant filed motion to dismiss plaint in plaintiffs’ following lack of due service process based attorney the statute of limitations. Plaintiffs’ filed an af expiration of motion in which he indicated that fidavit defendant’s opposition he had two one address was possessed addresses defendant: *3 at the scene and one was contained in the po plaintiffs by granted lice The court defendant’s motion and dismissed report. plain of action to defendant Shallow. The plaintiffs appeal tiffs’ cause as 304(a)). Rule Ill. R. pursuant Supreme 304(a) (107 to Court 2d alia, 103(b) Court Rule inter that an provides, Supreme plaintiff’s where a failure to exer prejudice action be dismissed the expiration service occurs after the of cise due obtain (107 103(b).) of Ill. 2d R. of purpose statute limitations. applicable is in the ser “protect unnecessary delays the rule defendants from Ill. upon (1980), App. of them. Greenwood v. Blondell 85 process” vice 186,188. 3d Rule is 103(b)
A to dismiss addressed pursuant motion re of trial and will disturbed on the sound the court not be discretion Dodge, Cicero Inc. v. Vic (North absent an abuse of discretion. view App. 8609.) Ill. 3d The standard for deter (1987), toria Feed Co. 151 reasonableness, and the is one of the bears mining diligence diligence. (Hanna that he has exercised such demonstrating burden Ill. whether a 896.) determining plain v. 91 3d In Kelly (1980), App. in the factors the court considered diligence, tiff has exercised due service; (2) the (1) length plaintiff’s the of time used to obtain clude service; the knowl- (3) plaintiff’s to effectuate attempting activities in
597 location; ease with defendant’s edge (4) of the defendant’s the which ascertained; actual (5) location have defendant’s knowl could been which edge action; (6) of the circumstances would pending special affect West 166 Ill. 3d Semersky (1988), App. efforts. v.
Here, their plaintiffs original and issued complaint just summons weeks before the of the statute of limita expiration summons, tions. Following the return plain second unanswered tracing tiffs six months one spent telephone making number and some plaintiffs calls. could defendant’s easily have discovered through address during of State’s office that time rather last using than avenue as a resort. find that the only We trial not court did abuse its discretion in action dismissing plaintiffs’ against defendant. See Womick v. Jackson County Nursing Home 371, (1990), (no 137 Ill. 2d 380 abuse of discretion in action dismissing after of statute expiration limitation); Segal (1990), Sacco cf. (abuse Ill. 2d of discretion in dismissing action where plain tiff’s delay 19-week was inadvertent).
For reasons, the foregoing circuit judgment court Cook County affirmed.
Affirmed.
LINN, J., concurs. JIGANTI,
JUSTICE dissenting: I respectfully dissent. upon We called determine whether or not the plaintiff diligence” exercised “due in obtaining service on the defendant Paul I agree Shallow. While with the majority’s general issue, statements of the law they as relate to this I balance would come to the conclusion. opposite following is a chronology events.
7/14/85 Date of occurrence.
5/22/87 Suit filed.
5/22/87 Summons issued to defendant Shallow at 10216 Fairfield,
South Chicago. This was *4 that the gave plaintiff defendant to the scene of the occurrence.
6/12/87 The sheriff’s return shows “Not Served.” Hale, 9/17/87 Alias summons issued for was 10615 South This Chicago. was the address on the re- police port. the plaintiff
11/9/87 The checked alias summons and it not found had been served and contained the at notation “not this address.” The return itself in is not record the date the re- the actual turn is not noted. codefendant,
2/5/88 Answers to from a Interrogatories Griffin, on Willie listed Shallow’s address Hale. of State to requested pro- 5/26/88 Plaintiff on vide the current information Paul Shallow. from the plaintiff report 6/7/88 The received a Secre- showing State the defendant’s address tary Woodridge, County, in Du Illinois. Page Woodridge An alias issued at the 6/15/88 summons was address. Defendant was served.
6/28/88 clear, not appears the is it that after the entirely While affidavit service, the clerk alias summons was returned without law plaintiff by traced number that had been to the telephone the the a corresponding Shallow at the scene of occurrence and obtained in Chicago An prepared address. alias summons was number, contact was telephone telephone that but corresponded to it and was de- person made with the who had that not at all with Paul Shal- acquainted termined that was person low. ren justice rule is ensure that is diligence designed due 112 Ill. 2d Hospital (1986), v. promptly. (O’Connell
dered St. Francis 1322; Nursing Home County 492 N.E.2d Womick v. Jackson from 371.) designed protect Ill. 2d Also it is defendants (1990), 137 the statute of limitations. delay or the circumvention of unnecessary Ill. Dismissal is a harsh (1990), 286.) penalty v. 2d at (Segal Sacco a opportunity is fair which when denied justified Construc investigate alleged liability. the circumstances of his Geneva 273, 289- (1954), 4 Ill. 2d Storage tion Co. Martin & Co. v. Transfer Segal 540; 288. 90,122 Sacco, 136 Ill. 2d at N.E.2d exer- diligence, plaintiff not a due example While textbook result of dis- harsh cised a amount avoid sufficient plaintiff of the On the occurrence missal of his lawsuit. date re- police in Chicago. address on Fairfield given Shallow’s home Hale, also in address, one on Chi- however, a different contains port, lawsuit, at- filing immediately upon cago. plaintiff, successful, not on Fairfield and when to serve the defendant tempted Hale. While at- serve the attempted later short time *5 tempting to serve the suit the codefend- process, pursued against ants, whom interrogatories listing address, one of answered Shallow’s events, as did police report, respect on Hale. to these With with reasonable conduct proceeded diligence. plaintiff’s summons, however, after checking the alias was not service the Secre- satisfactory. Ignoring checking obvious recourse State, tary of while out the attempting to check by the defendant at time of the occurrence waiting and codefendants, answers to interrogatories not reasonable dili- gence. However, when diligent attempting efforts in im- mediate provided by service addresses the defendant and the police pursuing against defendants, the case report, other against the minimal weighed efforts made after and until the time that the plaintiff obtained from a inquiry information simple State, I do not believe that the extreme penalty dismissal is warranted. ILLINOIS,
THE PEOPLE Plaintiff-Appellee, OF THE STATE OF MALONEY, JAMES MICHAEL Defendant-Appellant. (3rd Division) First District No. 1 - 88-2603 Opinion filed July