*1 (Nos. 63023 cons.— ROBERT L. SWISHER, E. Appellee, JOHN DUFFY al.,
et Appellants. Opinion April 2, 1987. Rehearing 5, 1987. denied June CLARK, C.J., SIMON, JJ., and GOLDENHERSH and
senting. Thomas, Feehan, Ltd., Baron Wallace, Kaplan, & Davis, of counsel), Joliet J. Baron and Pamela (Robert John E. appellant Duffy. Hinshaw, Culbertson, Moelmann, Fuller, & Hoban Vincent, of Kendall Griffith and Joshua G. Chicago (D. Health Care counsel), Franciscan Sisters aрpellant Corporation. *2 Ltd.,
James J. M. Reidy, Chicago (Margaret for O’Leary, counsel), appellee.
JUSTICE RYAN delivered the of the court: opinion Robert Swisher filed a medical action in malpractice the circuit court of Dr. John County against Will Duffy 1, 1982, and St. On Joseph’s Hospital. October prior merits, trial on the granted circuit court plaintiff’s motion 1985, for ch. voluntary (Ill. Rev. Stat. 110, par. 1009). 21, 1982, On October three af weeks 2— ter granting dismissal, the trial court voluntary signed written order for dismissal of the voluntary case.
Plaintiff refiled this action in the circuit court of Will 1983, on County 21, October one from the date that year the circuit court the written order of signed voluntary 13, 1983, dismissal. On December the trial court granted defendants’ motion to dismiss the action on the grounds that it filed within one of the date that the year dismissal was as statute. granted, required by (Ill. 110, ch. The par. 217.) appel 13— reversed, late court concluding one-yeаr period did not to run until court begin trial (Swisher written order of dismissal. 139 Duffy (1985), 691.) granted We defendants’ for leave to now re petition appeal, we verse the court.
Plaintiff filed his original medical action malpractice on 1981. the circuit August granted When court motion for dismissal on October 378 the clerk made the following official entry
docket:
“Charles Hahn Sandberg for Plaintiff. Mr. and Mr. Gar- bold the Defendants. Plaintiff’s motion for voluntary non-suit is allowed. Case dismissed.
CONNOR/hjk/mbs” 21, 1982, On October plaintiff’s attorney presented order of voluntary dismissal which the circuit signed, and the clerk made the notation following in the official docket:
“Voluntаry signed. dismissal order CONNOR/hjk” SOS There is no indication the record that when missal order of October was entered the circuit court directed of a written preparation or defendants had notice that on October the written or- der was to the circuit presented court and Plain- signed. tiff refiled his suit on 21,1983. October
The issue in this case is whether en judgment was *3 21, tered on 1 or October October for of calcu purposes the time lating allowed statute Ill. refiling. (See 1985, 110, Stat. Rev. ch. In par. 217.) considering 13 — this turn question we Court Rule 272 Ill. Supreme (87 2d R. 272). Rule 272 as provides follows:
“If at announcing the time of final judgment requires the judgment submission of a form of written him, be signed by the clerk shall make a notation to that effect and the judgment final when the only becomes signed judgment is filed. If no signed' judg- such filed, ment is to the judge or clerk shall forthwith make judgment a notation of judgment enter the of promptly, record and the is entered the time at it is entered of record.”
Rule 272 was intended to regarding resolve questions the timeliness of an an where there is oral an appeal v. West (West nouncement of from the bench. 226, 76 Ill. 2d (1979), 233.) The function of Rule 272 is fix the time that a for the entered pur of the time allowed for pose determining filing ap (Stoermer 287, 104 Ill. 2d peal. Edgar (1984), 293.) We find that the same is served there is a purpose where time limited set for a in refiling as is provided statute involved here. (Ill. 1985, 110, ch. par. 217.) In such cases Rule 272 to fix the serves date of 13— judgment for the purpose whether determining plain tiff’s timely.
Plaintiff that Rule 272 argues does not apply case. He contends that judgment granting volun dismissal was an tаry order on a motion to our pursuant Rule 271 (87 2d R. not a 271), final judgment within of Rule meaning 272. Rule 271 as follows: provides
“When the court rules upon a motion other than in
trial,
the course of
attorney
prevailing
shall prepare
present
to the court the
judg-
order or
entered,
ment to be
unless the court directs otherwise.”
In Kahle v. John Deere Co. (1984),
104 Ill. 2d
this court was presented with the question of whether a
dismissal is a
final and
order.
appealable
Rely
ing
Flores v. Dugan
(1982),
Ill. 2d
and Wold
v. Bull Valley Management
(1983),
Co.
suant but 272. ment under Rule contains no notation
Since the record this case of a the submission the effect that the judge required 272, as he do under Rule may it of Rule 272 when was entered purposes v. Dickerson (See People was “entered of record.” 59, 3d the trial 61.) 129 Ill. When (1984), App. no and a dismissal October granted voluntаry was made by tation of the court’s pronouncement Drulard clerk, entered of record. See was Scott Co. Country 1034; 3d 99 Ill. (1981), App. Co. (1975), v. Dreis & Krump Manufacturing 26 Ill. 984. in Kahle holding our Plaintiff suggests applying retroactive application constitute an impermissible would since Kahle decided after law, оperative of the are not place. persuaded facts in this case took We Kahle did not announce rule of law new argument. holdings. past a sudden break with which constituted of dicta that a This court had noted previously by way of ap final for may purpose dismissal v. Beech (Galowich Corp. 92 Ill. 2d (1982), peal. Aircraft of this court holding There had no 161.) prior been of the under section 2—1009 that a dismissal appealable Procedure was not a final and Code of Civil order. Kahle was decided prior court’s to the appellate court was bound decision in this and the appellate compelling our of the reasons holding. to follow None of this court of a decision application solely prospective v. Shum People (1987), here. are See applicable 2d 317. or of a written filing
Plaintiff also contends 2—1009 section required der 1985, ch. (Ill. of the Codе of Civil Procedure *5 of this pro- The statute par. 1009). part pertinent 2— vides as follows: hearing plaintiff any at time trial or may,
“The before or upon notice each has begins, appeared who costs, party’s attorney, payment each such and of upon to any his or her or thereof as any part dismiss action defendant, in the without order filed prejudice, cause.” in
Plaintiff that the words order the argues “by cause” mean that a order required. reject is We this of the statute’s The interpretation language. statute that order noth- an be entered. We find merely requires ing the of the statute language requires a written order. the statute does not the of Thus affect operation Rule 272.
The of final en- tered on October and terminated the effectively case. the Since circuit did a written or- request der, and none was required, written order on October 21 was superfluous аnd had no legal effect. we
Accordingly, reverse of the court and affirm the of the circuit court of Will County. reversed;
Appellate court circuit court affirmed. CLARK, CHIEF JUSTICE dissenting: I dissent. respectfully court uses my opinion, an extremely dubious of the interpretation pertinent statute and rules to reаch a result which deprives plaintiff of his right substantive More- seek redress. over, given entries, the laconic nature most docket court’s interpretation bound to create unnecessary in future cases. confusion
This is case where, no statute or rule unfortunately, speaks at The directly issuе. point precise ques- .the
tion seek we to answer is this: Where the court grants dismissal, motion for re- grant is corded on official docket which does not entry indicate the court a written contemplates dismissal, court later a written order for signs dismissal, does the one-year period begin tо run from the date of the docket or the entry date of the signed written order? In the absence of a provision situation, such a specifically governing logical alternative, inference can either support depending which statute or rule choose to find you applicable, *6 how choose to it. Each you interpret written opinion this court, both from the and in our appellate court, has read these provisions differently.
The statute which governs spe dismissals that a is to dismiss his or her cifically provides plaintiff action order in the “by added.) cause." (Emphasis (Ill. ch. the 1009.) Giving рar. 2— words “order” and “filed” their usual the meanings, statute seem would to written orders contemplate only and thus to further that the will imply period refiling run from the date of such order. Our Rule 271 Ill. 2d (87 R. other than 271), governs rulings which motions upon trial, in the course of that the provides prevailing party tois and to the court “the order or prepare present entered, the be unless court directs other It wise.” would thus seem to that orders imply written are to that in the of a con and absence preferred, direction, the the con date of written order will trary in 272), trol. Our Rule 272 Ill. 2d R. which was (87 timeliness of tended to resolve the questions concerning from final judgments (Stoermer Edgar (1984), appeals fi 104 Ill. 2d that oral are 293), provides judgments at time of nal when entered of record unless the judg order, a nota signed ment the a written judge requires clerk, in tion to that effect entered which being
383 case the final when the judgment only becоmes filed. that: (1) voluntary Assuming (2) missals final Rule 272 not judgments, governs are of an also the timeliness of a timeliness but only appeal of a in this case (3) absence notation refiling, means dismissal did judge origi- granting order, a applica- submission of written nally require tion of Rule 272 would seem dictate the time re- to run at the time when the filing began order entered on record. The different positions by the different writ adopted ten opinions in this case reflect these differing interpre tations of the rules. In the court, the majority opinion relied partially upon section 2—1009 parti ally Rule upon hold that dismissal al ways written order and that therefore the requires period begin could not to run until that writ ten order was entered. Ill. 3d (139 App. 695.) The concurring would held that opinion have Rule ap plied, but, disagreeing with the third men assumption tioned above, concluded that the absence of a clerk’s no tation did not mean judge failed to require a This order. infers that opinion did re such quire from the fact that he later signed one. (139 691, 695-96.) court, ma *7 takes the that Rule jority opinion view 272 and applies, the adopts all of three set forth above. assumptions (117 Ill. 2d at 378-79.) Thus the would hold that a majority suit either may voluntarily dismissed dockеt entry order, or by that, written but concludes in this the did not judge a written order and originally contemplate thus the to the period refiling run when clerk began entered on the official the judge’s docket oral announce ment of his motion grant to dis voluntarily miss.
It to me that a to this case approach seems proper the the statute nor our must with obvious: Neither begin own rules a date from which the one- provide specifically an action after a dis- year voluntary period hand, one the missal to be measured. On the volun- not the grant statute does whether tary-dismissal specify of the motiоn from docket or writ- entry is to be dated hand, nor Rule ten order. On the other neither Rule 271 dismissals. More- 272 deals with specifically over, either of the two rules are drawn to analogies bound to be misleading. of Rule 272 ig- the court’s particular, application to crucial the time an given
nores thе difference between from a judge’s ruling against adverse party appeal to a prevailing party and the time party, given Al- in favor of that refile after a has ruled judge party. not it is the pre- Rule 272 does so though specify, surely a written who will be submit vailing party required if the so Since the adversе requires. par- to run until begin time to file will ty’s appeal prevailing party prepares usu- filed, it prevailing party
causes to be has incentive to see that the written ally every dismissal, is filed In the case of a voluntary promptly. however, against prevail- to run begin clock will Thus, appli- and nоt the adverse ing against party. party, cation of Rule 272 to dismissals will enable granted prevailing party, extend the time for missal, refiling simply to unilaterally order or judg- its of the written by delaying preparation ment. case that
Thus, plain- the court has held while lead to refile, cannot its of Rule will apрlication tiff unilateral it fears —the evidently the very consequence granted voluntary of time to refile by plaintiffs extension of Rule mandates which Application dismissals. *8 otherwise, written orders unless the directs would lead to the same unfortunate result. hand,
On other it cannot be denied that section 2—1009 written orders of dismissal—at contemplates alternative, least as an or more as a probably require ment. The cause,” order to be filed in the phrase “by seems to a written order. In definitely contemplate par ticular, use of the phrase “filed” seems to that a imply written doсument must be transferred to the of custody a court officer. “A document is filed when it is delivered to the officer proper with the intent of such having docu ment on file such kept by officer in the proper place.” (Sherman v. Board Fire & Police Commissioners of 111 Ill. (1982), 1007.) The requirement of a written doсument particularly appropriate case of a because of the possibility that the case will be refiled. shortly Under these circum stances, there is a great need for providing specific, easily ascertainable date which will commence the limita tions A docket period. book is less than likely a filed doc ument to provide such a record.
Thus we are presented with a genuine dilemma. While dismissals be, or may be, must perhaps made by order, written our usual practice of having prevailing such an party prepare lead may to delib- erate delay. Pending amendment possible of our rules to deal with situation, I would hold the Vol- following: untary dismissals are to be granted order, be prepared prevailing However, party. the ad- verse party may, to protect its move rights, that any written order be made nunc pro tunc, with its date ef- fective as of the date of the docket if entry, any, grant the motion to dismiss. In this voluntarily the record does not reflect the adverse so moved to its protect Since the rights. written order is tunc, nunc pro its date should control. I would there-
fore hold that cause of action was timely filed, and that the judgment of the *9 should I be affirmed. therefore dissent. SIMON, JJ.,
GOLDENHERSH and join this dissent. (No. 61062.—
THE ILLINOIS, PEOPLE OF THE STATE OF Appel
lee, D. PARMLY, v. JEFFREY Appellant.
Opinion May 22, 1987. Rehearing 5, 1987. denied October