author: PRESIDING JUSTICE LEWIS

text:
    ROBERT E. PARKER, Plaintiff-Appellant, v. UNIVERSAL PACKAGING CORPORATION, Defendant-Appellee (Federal Pacific Electric Company et al., Defendants).
    Fifth District
    No. 5-89-0378
    Opinion filed June 19, 1990.
    Rehearing denied August 10, 1990.

      Jeanne L. Sathre, of Lakin & Herndon, P.C., of Wood River, for appellant.
    James B. Bleyer, of Bleyer & Bleyer, of Marion, for appellee.
   PRESIDING JUSTICE LEWIS

delivered the opinion of the court:

The plaintiff, Robert Parker, presents a single issue for review, whether the trial court erred in dismissing his complaint because of a failure to exercise due diligence in obtaining service upon the defendant, Universal Packaging Corporation (hereafter referred to as Universal), pursuant to Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)).

According to the pleadings, on about September 18, 1984, the plaintiff suffered injuries while working on a high-voltage circuit panel and box. On March 18, 1986, he brought suit against several defendants. Summons was issued and served on each of the defendants, discovery took place, and various proceedings were had in that suit until December 21, 1987, at which time, about two weeks prior to the scheduled trial of the cause of action, the trial court entered an order granting the plaintiff’s motion to dismiss the cause without prejudice as provided by section 2 — 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1009). The plaintiff was given leave to refile the cause of action within one year. Thereafter, on September 12, 1988, the plaintiff brought suit in Federal court seeking damages against Universal arising out of the occurrence of September 18, 1984. On December 5, 1988, pursuant to section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 217), the plaintiff filed his complaint in the instant cause. On February 22, 1989, the district court granted Universal’s motion to dismiss plaintiff’s complaint with prejudice because it had been filed over a year after the limitation period had run. On March 3, 1989, plaintiff moved to amend his complaint in the instant cause, and the trial court granted that motion; the plaintiff filed his amended complaint on that same day. On March 9, 1989, summons was issued, and service was effected upon Universal the next day. On March 28, 1989, Universal made a special and limited appearance solely for the purpose of moving to quash summons and to dismiss the cause pursuant to Rule 103(b). In this motion Universal stated:

"4. That the cause of action set forth in plaintiff’s complaint arises out of an occurrence on September 18, 1984. That the whereabouts of the defendant has at all times been known and service of process has been made on two occasions within a day after the issuance of the summons.
5. That the failure of the plaintiff to request a summons and to have summons served on the defendant for more than three months after the filing of the Complaint and more than two months subsequent to the expiration of any applicable limitations represents a flagrant lack of diligence and violates the letter and spirit of Supreme Court Rule 103(b) and plaintiff’s complaint should be dismissed, with prejudice, at plaintiff’s cost.”

In an order filed May 11, 1989, following a hearing, the trial court dismissed plaintiff’s amended complaint against Universal with prejudice, and this appeal followed. Other defendants in this cause are not involved in this appeal.

Although the plaintiff does not dispute that service in this cause was not obtained until after the limitation period had expired, he contends that there was not such a lack of diligence or passage of time as to warrant the trial court’s drastic remedy of dismissal with prejudice. Relying in part upon O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322, Universal asserts that the plaintiff

“controlled this litigation for five years and should not be permitted to simply flaunt the rules to his advantage and determine when the case should proceed. If Supreme Court Rule 103(b) means anything, it should mean that the plaintiff in this cause failed to exercise reasonable diligence, and the trial court so found.”

Universal indicated during oral argument before this court that it does not contend that a delay of approximately three months in the service of process, standing alone, amounts to a failure to exercise reasonable diligence to obtain service; rather, Universal maintains that a delay of nearly three months in obtaining service upon refiling of the suit, when coupled with the approximately five-year history of the case, constitutes a failure to exercise reasonable diligence to obtain service.

Supreme Court Rule 103(b) provides as follows:

“If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court’s own motion.” (107 Ill. 2d R. 103(b).)

Rule 103(b) was adopted to ensure the prompt and fair administration of justice. (Martinez v. Erickson (1989), 127 Ill. 2d 112, 535 N.E.2d 853.) This rule was intended to prevent the practice whereby a plaintiff could effectively circumvent the statute of limitations by filing suit within the applicable statutory period and delaying or failing to effect issuance of summons. (Luebbing v. Copley Memorial Hospital (1978), 60 Ill. App. 3d 780, 377 N.E.2d 345; Phifer v. Hayes (1974), 20 Ill. App. 3d 635, 314 N.E.2d 473.) Rule 103(b) supplements the purpose of statutes of limitations and operates to protect defendants from stale claims, thereby affording defendants a fair opportunity to investigate the circumstances while witnesses and facts are accessible. (Segal v. Sacco (1988), 175 Ill. App. 3d 504, 529 N.E.2d 1038, aff’d (1990), 136 Ill. 2d 282.) Thus, the rule serves to protect defendants from unnecessary delays in the service of process and to prevent circumvention of the statute of limitations. Segal v. Sacco (1990), 136 Ill. 2d 282; Hebting v. Miller Brewing Co. (1980), 82 Ill. App. 3d 981, 403 N.E.2d 671.

While prevention of intentional delay in the service of summons was a primary reason for adoption of Rule 103(b) and its predecessors, the rule is not based upon the subjective test of plaintiff’s intent but, rather, upon the objective test of reasonable diligence in effecting service. (Montero v. University of Illinois Hospital (1978), 57 Ill. App. 3d 206, 372 N.E.2d 1010.) Rule 103(b) does not set a specific time limitation within which the defendant must be served, but it does put the burden upon the plaintiff to show that he has exercised reasonable diligence in obtaining service. (Piscitello v. Barton (1978), 66 Ill. App. 3d 451, 384 N.E.2d 47.) It is not incumbent upon defendant to show prejudice by the delay. (Piscitello, 66 Ill. App. 3d 451, 384 N.E.2d 47.) There is no fixed rule to determine whether plaintiff exercised reasonable diligence. (Segal v. Sacco (1988), 175 Ill. App. 3d 504, 529 N.E.2d 1038, aff’d (1990), 136 Ill. 2d 282.) Each case will be decided on its own particular facts and circumstances, but courts will look at certain factors in determining whether the plaintiff has exercised reasonable diligence. (Montero, 57 Ill. App. 3d 206, 372 N.E.2d 1010.) The factors a court may consider in making such a determination include: (1) the length of time used to obtain service of process; (2) the activities of plaintiff; (3) plaintiff’s knowledge of defendant’s location; (4) the ease with which defendant’s whereabouts could have been ascertained; (5) actual knowledge of defendant of pendency of action; (6) special circumstances that would affect plaintiff’s efforts; and (7) actual service on defendant. (Segal v. Sacco (1990), 136 Ill. 2d 282.) These factors must be considered in light of the purpose of Rule 103(b). (Segal, 136 Ill. 2d 282.) Controversies should ordinarily be resolved on their merits after both parties have had their day in court. (Piscitello, 66 Ill. App. 3d 451, 384 N.E.2d 47; DeCicco v. Reed (1966), 77 Ill. App. 2d 349, 222 N.E.2d 346.) Dismissal under Rule 103(b) is within the sound discretion of the trial court, and the court’s judgment will not be disturbed absent an abuse of discretion. Hebting, 82 Ill. App. 3d 981 403 N.E.2d 671; Montero, 57 Ill. App. 3d 206, 372 N.E.2d 1010.

In Martinez v. Erickson where, as in the instant case, a Rule 103(b) motion was made for the first time in the refiled case, the supreme court stated:

“According to the O’Connell standard, as developed, the circuit judge is to consider service after refiling in light of the entire history of the case. He cannot disregard obvious diligence on the part of the plaintiff after refiling. The determination of diligence must be made in light of the totality of the circumstances.” (Martinez, 127 Ill. 2d at 121-22, 535 N.E.2d at 858.)

In Martinez, unlike the instant cause, none of the defendants had been served in the original action. In O’Connell the supreme court held that the trial court should consider a pending defense motion for dismissal under Rule 103(b) before taking up a plaintiff’s motion for voluntary dismissal and held further that the trial court may weigh the circumstances surrounding service of process in the original action as well as in the refiled one. Earlier, in Aranda v. Hobart Manufacturing Corp. (1977), 66 Ill. 2d 616, 620, 363 N.E.2d 796, 799, as the court noted in Martinez, it had ruled that a court may “consider an overall span of time between the filing of the first complaint and the ultimate service of summons in the second case in assessing plaintiff’s diligence.” In Martinez the court quoted the caution it had expressed in Aranda (66 Ill. 2d at 620, 363 N.E.2d at 799), that “the period of time within which plaintiff must obtain service following the refiling of his suit under section 24 [i.e., the statutory predecessor to section 13 — 217] cannot be so abbreviated as to make the right granted by that section meaningless.” Martinez, 127 Ill. 2d at 121, 535 N.E.2d at 858.

Recently, in Segal v. Sacco (1990), 136 Ill. 2d 282, our supreme court concluded that the circuit court’s allowing of the defendants’ Rule 103(b) motion and dismissal of the cause with prejudice was an abuse of discretion because the length of the delay in the service of process was such that the purpose of Rule 103(b) would not be served by dismissing the plaintiff’s action. There the plaintiff had forgotten to place the summonses for service for 19 weeks after the filing of his complaint. Service was effected by a special process server within two weeks thereafter. The supreme court observed in Segal that

“[i]t would not be an abuse of discretion for a circuit court to allow a dismissal with prejudice under Rule 103(b) for a delay equal to or shorter than the delay present in this case if the delay occurs under circumstances which serve to deny the defendants a ‘fair opportunity to investigate the circumstances upon which liability against [the defendants] is predicated while the facts are accessible.’ (Geneva Construction Co., 4 Ill. 2d at 289-90.) Under such circumstances, the purpose of Rule 103(b), the protection of defendants from unnecessary delay and the prevention of the circumvention of the statute of limitations, would be promoted.” (Segal, 136 Ill. 2d at 289.)

In Segal voluntary dismissal of an original suit and refiling had not occurred.

In the instant case the original cause of action was filed well before the expiration of the applicable statute of limitations. There is no suggestion by Universal or in the record that the plaintiff did not exercise reasonable diligence with respect to service of process in the original action, and no motion for dismissal under Rule 103(b) was made until the case was refiled. Universal was, of course, fully apprised of the original action and knew that the plaintiff had leave to refile the cause of action within one year of the order entered on December 21, 1987, granting plaintiff’s motion for voluntary dismissal. Although 4*k years had passed from the time the plaintiff was injured on September 18, 1984, until service was effected upon Universal on March 10, 1989, after the action had been refiled, the plaintiff had proceeded according to the law under the provisions of section 2 — 1009 in moving for voluntary dismissal “at any time before trial or hearing begins” and under the provisions of section 13 — 217 in commencing a new action within one year after such dismissal. As in Segal, the length of the delay in the service of process here is such that the purpose of Rule 103(b) would not be served by dismissal of the plaintiff’s cause of action. Given the posture of the litigation when plaintiff’s motion for voluntary dismissal of the original suit was granted, the delay herein is not one serving to deny Universal of a fair opportunity to investigate the circumstances upon which liability against it is predicated while the relevant facts are accessible. Under all of the circumstances presented here, we think that the delay of about 13 weeks, considerably less than that of 19 weeks in Segal, constitutes an impermissible abbreviation of the period of time "within which the plaintiff must obtain service following the refiling of his suit under section 13 — 217. Therefore, the trial court abused its discretion in dismissing this cause of action. Thus, the order dismissing plaintiff’s amended complaint against Universal with prejudice is reversed, and the cause is remanded for further proceedings.

We have been invited to make no determination, and have made none, concerning the effect, if any, of the filing of an action in Federal court, as occurred here, following entry of an order granting plaintiff’s motion for voluntary dismissal of the cause pursuant to section 2 — 1009 and prior to the refiling of the action pursuant to section 13 — 217.

Reversed and remanded.

HARRISON and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HOWERTON JUSTICE CHAPMAN,

license: Public Domain

text:
    JACK DeCLERCK, Plaintiff-Appellee, v. GAYLE SIMPSON et al., Defendants-Appellants.
    Fifth District
    No. 5—88—0615
    Opinion filed June 21, 1990.
    CHAPMAN, J., concurring in part and dissenting in part.
    Jeffrey C. Taylor and Merry C. Rhoades, both of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Decatur, for appellants.
    Joseph A. Bartholomew, of Cook, Shevlin, Keefe & Ysursa, Ltd., of Belleville, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

This case presents a serpentine legislative and judicial history of the “savings statute.” Finding head and tail is difficult, and describing the hunt takes many words.

Initially, plaintiff filed suit against defendants in Federal court for libel and defamation, which he alleged occurred on August 6, 7, 8, and 9,1986.

Defendants moved to dismiss for lack of personal jurisdiction and improper venue.

The case was dismissed by the Federal court December 14, 1987, on grounds of improper venue.

The motion to dismiss for lack of personal jurisdiction was not addressed.

Less than one year later, on March 30, 1988, plaintiff refiled the defamation case in the circuit court of Christian County, Illinois.

Defendants moved to dismiss, claiming that the one-year statute of limitations for libel actions had passed, barring the case.

Plaintiff claimed that the “savings statute” gave him one year after dismissal from Federal court in which to refile in State court. Ill. Rev. Stat. 1987, ch. 110, par. 13—217 (formerly, Ill. Rev. Stat. 1977, ch. 83, par. 24a).

The circuit court denied the motion to dismiss, certified the question for this court under Supreme Court Rule 308 (107 Ill. 2d R. 308), and we granted leave to appeal.

Does the “saving statute” apply to a case that was initially filed in Federal district court but was dismissed because of improper venue? We believe it does.

Section 13 — 217 of the Code of Civil Procedure in pertinent part reads:

“§13 — 217. Reversal or dismissal. In the actions specified in Article XIII of this Act or any other act or contract where the time for commencing an action is limited, if *** the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction, then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff *** may commence a new action within one year or within the remaining period of limitations, whichever is greater, *** after the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction.” Ill. Rev. Stat. 1987, ch. 110, par. 13 — 217.

Defendants argue that the statute is clear. It applies only to cases voluntarily dismissed, dismissed for want of prosecution, or dismissed by a United States District Court for lack of jurisdiction. This case, defendants say, was not voluntarily dismissed, dismissed for want of prosecution, or dismissed for lack of jurisdiction. Rather, this case was dismissed for improper venue. Therefore, defendants conclude, the statute does not “save” plaintiff’s case from death at the hands of the statute of limitations.

Plaintiff concedes that his case does not fall within the express terms of the statute, but contends that the policy upon which the statute is based supports the circuit court’s refusal to use the statute of limitations to kill the case.

We look to the evolution of the statute and to the case law construing it to discern legislative intent.

ORIGINAL STATUTE

The original statute only applied to cases in which the plaintiff was “nonsuited.” Ill. Rev. Stat. 1977, ch. 83, par. 24a.

The supreme court of Illinois, in 1964, was confronted with the question of whether the statute applied to a case that had been dismissed, instead of nonsuited, in Federal court for lack of jurisdiction. (Roth v. Northern Assurance Co. (1964), 32 Ill. 2d 40, 203 N.E.2d 415.) In Roth, the defendant argued that the statute only saved non-suits, not dismissals for lack of jurisdiction. The supreme court held that the statute applied, saying:

“ ‘The act is remedial, reflecting a legislative intent to protect the party who brings the action in good faith from complete loss of relief on the merits merely because of procedural defect. Such remedial statutes should be liberally construed, so as to prevent destruction of the purpose of the legislation. *** In both common law nonsuit and dismissal for want of jurisdiction the order is due to some defect in the procedure or proof which prevents a trial on the merits. The obvious purpose of the statute was to give a plaintiff an opportunity to try the merits and it is illogical to assume that the legislature meant to prevent hardship in the case of a nonsuit, but not in that of dismissal for want of jurisdiction.’ ” Roth, 32 Ill. 2d at 42-43, 203 N.E.2d at 416, quoting Sachs v. Ohio National Life Insurance Co. (7th Cir. 1942), 131 F.2d 134, 137.

Following Roth’s lead, the Illinois Appellate Court, in Casillas v. Rosengren (1967), 86 Ill. App. 2d 139, 229 N.E.2d 141, held that a dismissal for want of prosecution was covered by the “savings statute,” even though the statute’s language was limited to nonsuits.

STATUTE AMENDED

The statute was amended in 1976 in response to the work done by the Illinois Law Review Commission, which had alerted the legislature to the discrepancy between the terminology of the statute and the Civil Practice Act. The discrepancy: the statute used the term “nonsuit”; the Civil Practice Act used the term “voluntary dismissal.” (Fins, The Illinois Law Review Commission, 29 DePaul L. Rev. 443, 460-61 (1980).) Amended, the statute dropped “nonsuit” and substituted “voluntar[y] dismiss[al]” or “dismiss[al] for want of prosecution.” Ill. Rev. Stat. 1977, ch. 83, par. 24a.

In Hupp v. Gray (1978), 73 Ill. 2d 78, 382 N.E.2d 1211, the supreme court took an opportunity to use dictum to alert the legislature that there was a problem that had been built into the amended statute. Hupp’s complaint had been dismissed for lack of jurisdiction. The supreme court pointed out that the original statute saved the case under Roth, but that the amended version of the statute, had it applied, would not have saved the case, because the original “non-suit” language covered dismissals for lack of jurisdiction while the amended “voluntary dismissal” language did not.

The legislature took no action.

The supreme court was given an opportunity to hold what had been dictum in Hupp. In Conner v. Copley Press, Inc. (1984), 99 Ill. 2d 382, 459 N.E.2d 955, the court held that a case dismissed in Federal court for want of jurisdiction was not covered by the amended statute.

The upshot of the evolution of the “savings statute” and Roth is this: Roth construed the statute to cover all involuntary dismissals, even though “nonsuit” was the only term contained in the statute. Conner found that the statute had been amended, dropping “non-suit” and substituting “voluntary dismissals.” Therefore, the legislature had dropped involuntary dismissals from coverage, and substituted voluntary dismissals.

What a change!

Conner could only hold that Roth had become diseased to the point of death under the evolutionary forces that had been exerted by the changing face of the statute.

Then the legislature acted, and we are brought to this case.

STATUTE AMENDED A SECOND TIME

Ironically, the statute again was amended in the hiatus between Hupp and Conner, because “doubts arose regarding the application of [section 13 — 217] to dismissal by a federal court for lack of jurisdiction.”

As the statute now reads, it covers certain types of both voluntary and involuntary dismissals.

This last evolutionary push has struck at Conner, it, now, is diseased, withered, and we believe Conner no longer is in force.

The question is whether the reasoning of Roth applies.

ROTHREDUX

This history, this evolution, leads us to believe that Roth, once diseased, now is returned to health, a redux, if you will, at least insofar as the facts of this case are concerned.

Roth proceeds by classifying “nonsuit” as involuntary, and then includes thereunder other involuntary dismissals.

In this case, the statute covers dismissal by a Federal court for lack of jurisdiction, also an involuntary dismissal.

Does it cover dismissal for lack of venue, also an involuntary dismissal?

We believe it does, because the legislative history and the courts’ treatment lead us to believe that Roth’s reasoning is now revived.

The act is remedial, reflecting a legislative intent that this case be saved from the statute of limitations. In the words of Justice Schaefer in Roth, “it is illogical to assume that the legislature meant to prevent hardship in the case of a nonsuit, but not in that of dismissal for want of jurisdiction.” Roth, 32 Ill. 2d at 42, 203 N.E.2d at 416.

Substitute “dismissed in Federal court for lack of jurisdiction” in place of “nonsuit,” and substitute “lack of venue” for “dismissal for want of jurisdiction.” Justice Schaefer’s statement then can be read, “it is illogical to assume that the legislature meant to prevent hardship in the case of [dismissal in a Federal court for lack of jurisdiction], but not in that of dismissal for [lack of venue].” That reading does no damage to the fabric of the statute. Statutes apply to cases that fall within the object, spirit and meaning of a statute even though they fall outside the letter. Department of Revenue v. Joseph Bublick & Sons, Inc. (1977), 68 Ill. 2d 568, 369 N.E.2d 1279.

• In Roth, plaintiff was dismissed for lack of jurisdiction, an involuntary dismissal. The statute applied to “nonsuit,” an involuntary dismissal. Therefore, the statute covered the case.

This case was dismissed for improper venue, an involuntary dismissal. The statute applies to cases dismissed for lack of jurisdiction, also an involuntary dismissal. Therefore, the statute covers this case.

It is the involuntariness of the dismissal that places this case and Roth in the same class. It is the involuntariness of the dismissal that causes this case to be included in the statute.

We advance one hypothetical in proof of our position. Assume this case had been filed in an Illinois court rather than a Federal court and further assume that a motion attacking venue had been filed and granted. The case would not have been dismissed; it would have been transferred to an Illinois county in which venue would be proper. But in the case at hand, the Federal district court could not transfer to an Illinois court; it could only dismiss. Therefore, the case is most like one filed in Illinois and dismissed for lack of jurisdiction, a case clearly within the reach of the “savings statute.”

Furthermore, if there exists no personal jurisdiction in a Federal cause of action, it would follow that there is no venue. (See Andrews v. Heinold Commodities, Inc. (7th Cir. 1985), 771 F.2d 184.) Thus, any defendant in the future could forever bar the Federal plaintiff from refiling in an Illinois circuit court by simply filing a motion to dismiss for improper venue in a Federal district court, rather than a motion to dismiss for lack of jurisdiction. The policy of section 13— 217 effectively, therefore, would be thwarted by defendant’s tactical decision to use an implicit defect in the statute.

The maxim espressio unius est exclusio alterius is not of universal application and should not be used to defeat the intent of the legislature. (People ex rel. County of Du Page v. Smith (1961), 21 Ill. 2d 572, 173 N.E.2d 485.) The legislature is presumed not to have intended an absurdity or injustice. Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121, 302 N.E.2d 64.

Defendants also ask us to rule that the plaintiff filed in Federal district court in bad faith, thereby preventing application of the “savings statute” to the facts at hand. See White v. Tucker (1977), 53 Ill. App. 3d 862, 369 N.E.2d 90.

The circuit court found no bad faith, and we affirm. Plaintiff had a case that involved two States, Illinois and Missouri. Two defendants were Missouri residents, and part of the factual basis of the cause of action took place in a bar in Missouri, while part occurred in Illinois. Under these circumstances, we cannot find bad faith.

Having not the temerity to hope for wisdom, we have pressed for craftsmanship, and in humility and with proper deference to Roth and Conner, as well as to the legislature, we affirm the circuit court j and remand for further proceedings.

Affirmed and remanded.

WELCH, J., concurs.

JUSTICE CHAPMAN,

concurring in part and dissenting in part:

I concur in that portion of the majority’s decision which holds that the filing was not in bad faith.

I also agree that the legislature’s failure to include dismissals for improper venue as a category within the savings statute may have been because cases entirely within Illinois (or entirely within the Federal system) are transferred rather than dismissed for improper venue. It is only when cases are involved in both systems that a dismissal for improper venue can occur. Finally, I agree with the majority’s concern that the basic intent of the savings statute could be frustrated by a defendant’s tactical choice of moving for dismissal on venue rather than jurisdictional grounds. I note that there is no evidence of such maneuvering in this case since the defendants’ motions allege both jurisdictional and venue bases.

Even though I agree with all of the above, I must dissent for three reasons. First, the wording of the statute is clear and the history of the amendments outlined by the majority makes it even more clear. The dismissals protected by the statute have evolved from the general “nonsuit” which was interpreted by Roth to the specific categories discussed in Conner. While we may feel that the legislature may have intended to include dismissals for improper venue if it had occurred to them, feelings about what the legislature might have done if it had thought of a particular problem are not a proper basis of statutory construction.

Second, the supreme court in Roth was dealing with a general term, “nonsuit,” while Conner dealt with specific terms such as those contained in the present statute, and Conner explicitly stated that the original action must have been dismissed on one of the grounds set forth in the statute:

“Section 24 thus allows a plaintiff, whose original action has been dismissed on specified grounds, to file an action again though the statute of limitations has run. If the dismissal was on one of the specified grounds, the statute provides, in effect, a new limitations period which will extend at least one year from the date of the dismissal.” (Emphasis added.) Conner, 99 Ill. 2d at 385, 459 N.E.2d at 956.

Finally, I completely disagree with that portion of the majority opinion which freely substitutes words in a statute and concludes “That reading does no damage to the fabric of the statute.” (200 Ill. App. 3d at 893.) If that reading does no damage, what then would be wrong with substituting any or all of the nine enumerated grounds for dismissal found in section 2 — 619 of the Code of Civil Procedure and concluding that they too do no damage?

It is a legislative, not a judicial, function to stitch the pieces of the safety jacket together, and it is certainly not a proper judicial function to substitute legs for arms and, in the next breath, to state that the substitution does no damage to the fabric.

For the above reasons I would affirm the trial court’s finding of no bad faith, but reverse its holding on the applicability of the savings statute.


author: JUSTICE CHAPMAN

text:
    GREGORY K. IKEMIRE et al., Plaintiffs-Appellants, v. REGIONAL BOARD OF SCHOOL TRUSTEES, Crawford and Lawrence Counties, et al., Defendants-Appellees.
    Fifth District
    No. 5—89—0523
    Opinion filed June 22, 1990.

      Jeffrey E. Fleming, of Olney, for appellants.
    Max L. Tedford, of Cox, Phillips, Weber, Tedford & Heap, P.C., of Robinson, for appellee Oblong Community Unit School District No. 4.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiffs Gregory and Susan Ikemire petitioned for detachment of a tract of real estate from Oblong Community School District No. 4 (Oblong School District), and for annexation to Jasper County Community Unit School District No.' 1 (Jasper School District). The regional board of school trustees conducted a hearing on June 28, 1988, and denied the petition. On administrative review, the circuit court of Crawford County affirmed. Plaintiffs appeal.

Plaintiffs are the owners of a tract of land located approximately one mile from the nearest Jasper School District boundary line. Plaintiffs’ tract is located in the Oblong School District. Plaintiffs petitioned for detachment of their acreage, together with a strip of land 165 feet in width and approximately one mile in length extending from their residence to the Jasper School District.

JASPER SCHOOL DISTRICT

school district boundary

additional strip sought to be annexed

Ikemire tract

OBLONG SCHOOL DISTRICT

Gregory Ikemire testified that there are six owners of the one-mile strip of real estate which was included in the petition. Ikemire testified that of the six owners, only two of them had knowledge of the petition for detachment. None of the owners of the tract were present at the hearing to testify.

Plaintiffs testified at the hearing before the regional board of school trustees that they were the only registered voters in the area sought to be detached. Plaintiffs further testified as follows: that of their three children, only Kristi, age nine, and Kelly, age six, are of school age; plaintiffs’ youngest child, Kevin, is three years of age; in 1986 Gregory Ikemire became president of the Peoples State Bank in Newton, Jasper County, Illinois; in his capacity as president, he is expected to be involved in community, civic, and school activities in Newton and Jasper County; Mr. Ikemire has participated in fund-raising events, parades, and other events in Jasper County as the bank’s representative and anticipates continuing to do so; Mr. Ikemire is a trustee of Jasper Jobs, Inc., which he describes as the Jasper Chamber of Commerce; among his many activities in Jasper County, Mr. Ikemire is also a member of the Newton Rotary Club and the Jasper County Farm Bureau; Susan Ikemire grew up in Jasper County and her parents live in Newton; plaintiffs rely on friends and relatives in Newton and Jasper County as babysitters for their children; and plaintiffs attend church in Newton.

The plaintiffs expressed no dissatisfaction with the education their children receive in the Oblong School District. Susan Ikemire testified that the children appeared to be well adjusted in the schools and have had no disciplinary problems. The Ikemires’ principal concern in seeking detachment stemmed from Gregory Ikemire’s position as bank president. Since his job requires him to actively participate in Jasper community events, the plaintiffs believe family involvement in Oblong School District events will be hindered, and a detriment to the family structure may result.

The plaintiffs also testified that the special needs of their son Kevin would be better served in the Jasper School District. Kevin has an allergy which is aggravated by grain and bean dust. He is required to take medication during harvest season because of the symptoms resulting from the dust. The Oblong grade school is located next to a commercial grain elevator. The plaintiffs are concerned that the daily exposure to the dust while attending school in the Oblong School District will require additional medication for a prolonged period of time. Plaintiffs testified that they live on a farm, and during harvest, Kevin is kept inside the house because of the crop dust in the air. It was revealed on cross-examination that the schools Kevin would attend in the Jasper School District are located in a rural area, although it was not known whether there were bean or com fields within close proximity.

There was a discrepancy in the testimony at trial as to the traveling distances from the Ikemire residence to the two school districts. A letter admitted into evidence, signed by the superintendent of Jasper School District, states that annexation to Jasper School District would not create a transportation burden to the district, nor would it cause a discernible increase in expense to the district.

Alan Price, Oblong High School principal and acting superintendent, testified that the amount of school aid which the district would forfeit each year, if the petition for detachment were granted, would be approximately $2,050 per child. The real estate tax revenue on the Ikemire property which the district would lose would be approximately $667 per year. Alan Price also testified that the Jasper School District is currently the largest in Illinois in square miles. He testified that currently Oblong School District is levying at almost the maximum tax rate, while Jasper School District is not. A report admitted into evidence on behalf of Roger Lewis, the regional superintendent of schools, shows that the Jasper School District is three times larger in area and six times larger in assessed valuation than the Oblong School District.

Before addressing the issues on appeal, we are asked to respond to defendant-appellee Oblong School District’s motion to dismiss this appeal. The motion is based on grounds that the plaintiffs no longer reside upon the property which is the subject of this appeal. The Ikemires confirm that since the filing of their appeal they have moved to the Jasper School District.

It is true that we should not decide a case where a judgment would be wholly ineffectual for want of a subject matter on which it could operate, or which would have an advisory effect only. (People ex rel. Black v. Dukes (1983), 96 Ill. 2d 273, 276, 449 N.E.2d 856, 857.) It is well established that in the absence of a stay, an appeal is moot if possession or ownership of the specific property which is involved in the relief being sought on appeal has been conveyed to third parties. (107 Ill. 2d R. 305(i); Illinois Housing Development Authority v. La Salle National Bank (1985), 139 Ill. App. 3d 985, 987, 487 N.E.2d 772, 774.) While this rule is usually applied to the law of property in the private sector, we see no reason not to apply it to the case at bar. See In re Proposed Incorporation of Village of Frankfort Square (1988), 166 Ill. App. 3d 146, 150, 519 N.E.2d 721, 723.

On the issue of mootness, Gregory Ikemire submitted an affidavit which stated: (1) that beginning in September 1988, plaintiffs paid tuition costs to the Jasper School District in the approximate amount of $700 per month and have paid in excess of $9,700 in tuition; (2) that in an attempt to reduce the amount of tuition paid during the pendency of this appeal, plaintiffs moved to a residence located in the Jasper School District; (3) plaintiffs continue to own and maintain the residence located on the subject property; and (4) plaintiffs have not changed their voter registration. It has not been alleged or shown that the Ikemires have conveyed their interest in the subject property. We do not believe their right to appeal should be defeated merely because they have chosen to mitigate their damages by moving their residence outside the Oblong School District, particularly when they continue to own and maintain the residence on the subject property. Accordingly, we find that the appeal is not moot, and we deny the motion to dismiss.

Turning to the merits of this appeal, plaintiffs contend that the decision of the regional board of school trustees, denying their petition for detachment and annexation, was contrary to the manifest weight of the evidence. It is the role of the regional board and not of the courts to make findings of fact, and its determination will not be disturbed on administrative review unless it is shown to be contrary to the manifest weight of the evidence. (School District No. 79 v. County Board of School Trustees (1954), 4 Ill. 2d 533, 541, 123 N.E.2d 475, 479.) Section 7—6 of the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 7 — 6) sets forth the guidelines to be followed by the regional boards in determining whether to permit detachment and annexation. Following these guidelines, the regional boards may allow detachment only where the benefit to the annexing district and the detachment area clearly outweigh the detriment resulting to the detaching district and the surrounding community as a whole. Oakdale Community Consolidated School District No. 1 v. County Board of School Trustees (1957), 12 Ill. 2d 190, 193-94, 145 N.E.2d 736, 737.

The record shows that the trial court’s ruling that the plaintiffs failed to establish that the Jasper School District or its pupils would as a whole benefit by the annexation of the subject property is not against the manifest weight of the evidence. No allegations were made and no testimony was received indicating that the educational opportunities of one district exceeded the other. Although the financial detriment of the Oblong School District is but one factor to be considered (Fromm v. Will County Board of School Trustees (1976), 41 Ill. App. 3d 1045, 1049, 355 N.E.2d 172, 175), it is evidence which supports the board’s decision. Furthermore, although evidence was presented regarding Kevin Ikemire’s allergies and the plaintiffs’ concern's related thereto, we do not find that the board’s determination was contrary to the manifest weight of the evidence. We find it significant that the Ikemires reside on a farm where Kevin is currently subjected to grain and bean dust. Additionally, there was evidence that the schools in the Jasper School District are located in rural areas.

The remaining evidence indicates that the detachment would be solely for the preference and convenience of the plaintiffs personally. (See Eble v. Hamilton (1977), 52 Ill. App. 3d 550, 554, 367 N.E.2d 788, 791.) Personal preference and convenience, standing alone, are insufficient to support a detachment (Oakdale, 12 Ill. 2d at 194, 145 N.E.2d at 738); however, considering this factor along with the other evidence presented, we conclude that the decision of the regional board was not contrary to the manifest weight of the evidence.

Plaintiffs also argue on appeal that the trial court failed to give sufficient consideration to the “whole child” concept, as that term was recognized in Board of Education of Golf School District No. 67 v. Regional Board of School Trustees (1982), 89 Ill. 2d 392, 433 N.E.2d 240:

“The ‘whole child’ factor *** recognizes that extracurricular participation in social, religious and even commercial activities is important in a child’s development as a beneficial supplement to the child’s academic involvement. [Citation.] Too, in annexation-application hearings it is proper to ascertain whether the petitioning area is identified with the school district and the community to which annexation is requested. If a child attends school in his natural community it enhances not only his educational opportunity, but encourages his participation in social and other extracurricular activities that figure importantly in the ‘whole child’ idea.” Golf, 89 Ill. 2d at 397-98, 433 N.E.2d at 243.

Susan Ikemire testified that her children appeared to be well adjusted in the Oblong School District. The plaintiffs expressed no dissatisfaction with the education their children receive in the Oblong School District. Their principal reason for seeking detachment stemmed from Gregory Ikemire’s position as bank president. Mr. Ikemire testified that he is not precluded from participating in Oblong School District events, but that his job requires him to partake in Jasper community activities which consequently interfere with his ability to participate in Oblong area events. While the Ikemires expressed concern that their son would be precluded from participating in outdoor activities at the Oblong grade school due to his allergies, there was evidence that the Jasper schools are also located in rural areas. Kevin currently is required to stay inside of his home during harvest season, as the Ikemires live on a farm and the crop dust aggravates Kevin’s allergy.

Plaintiffs offered no evidence that the petitioning area is identified with the Jasper School District and the Jasper community. (Golf, 89 Ill. 2d at 398, 433 N.E.2d at 243.) We do not find that based on the evidence presented the trial court failed to consider the “whole child” concept.

Plaintiffs’ final contention on appeal is that the trial court erred in considering that the property sought to be annexed was not contiguous to the Jasper School District. We note that the contiguity and compactness factors (Ill. Rev. Stat. 1989, ch. 122, par. 7—4(c)) were not listed as factors the regional board considered in making its determination. The trial court stated in its decision that although the regional board did not list these factors in its finding, the factors may have been part of the decision of the board. Without making a finding as to whether the petitioning property is contiguous, we hold that assuming both the board and the trial court considered the property as not contiguous, such is harmless error. Notwithstanding the contiguity factor there is sufficient evidence to uphold the decision below.

Based on the foregoing, the judgment of the circuit court of Crawford County is affirmed.

Affirmed.

WELCH and HOWERTON, JJ., concur.


author: JUSTICE HOWERTON

text:
    DAVID DEEM, Plaintiff-Appellant, v. BOARD OF EDUCATION OF TRIAD COMMUNITY UNIT SCHOOL DISTRICT NO. 2, MADISON COUNTY, Defendant-Appellee.
    Fifth District
    No. 5—88—0318
    Opinion filed June 22, 1990.
    Ralph H. Loewenstein, of Drach & Deffenbaugh, P.G., of Springfield, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Kevin R. Sido, William M. Gatlin, and Kathryn A. Spalding, of counsel), for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Plaintiff, David Deem, appeals the Madison County circuit court’s dismissal of his complaint for failure to state a cause of action under section 24 — 12 of the School Code (Ill. Rev. Stat. 1985, ch. 122, par. 24 — 12). We reverse and remand.

Deem’s complaint alleged that: he was a tenured teacher in contractual continued service with defendant, Board of Education of Triad Community Unit School District No. 2; before the 1979-1980 school year, he taught full time; during the 1979-1980 school year, he agreed with the Board to teach part time; during both the 1984-85 and 1985-86 school years, he asked the Board’s superintendent whether any full-time positions were available; he was told there were none; before the commencement of the 1986-1987 school year, he demanded to be returned to any available full-time teaching position he was legally qualified to fill; during the 1986-1987 school year, the Board hired a teacher to fill a newly created nurse/biology teaching position; and, finally, Deem alleged he was qualified to teach this biology course, was available to teach at the time the course was scheduled, and had more seniority than the new teacher.

Deem asserts that the Board’s refusal to assign to him to teach the biology courses was a violation of section 24 — 12 of the Illinois School Code.

Section 24 — 12 provides in part:

“Removal or dismissal of teachers in contractual continued service. If a teacher in contractual continued service is removed or dismissed as a result of a decision of the board to decrease the number of teachers employed by the board or to discontinue some particular type of teaching service, *** in all such cases the board shall first remove or dismiss all teachers who have not entered upon contractual continued service before removing or dismissing any teacher who has entered upon contractual continued service and who is legally qualified to hold a position currently held by a teacher who has not entered upon contractual continued service. As between teachers who have entered upon contractual continued service, the teacher or teachers with the shorter length of continuing service with the district shall be dismissed first ***. If the board has any vacancies for the following school term or within one calendar year from the beginning of the following school term, the positions thereby becoming available shall be tendered to the teachers so removed or dismissed so far as they are legally qualified to hold such positions.” Ill. Rev. Stat. 1985, ch. 122, par. 24 — 12.

The Board claims that Deem’s complaint was correctly dismissed, because Deem did not allege that he had been dismissed or removed as required by section 24 — 12. The Board argues that the voluntary agreement between the parties to reduce Deem to part-time teaching status did not constitute a dismissal or removal, since it was not due to a unilateral decision of the Board to “decrease the number of teachers employed by the board or to discontinue some particular type of teaching service.”

While section 24 — 12 requires a removal or dismissal, the courts have consistently held that “to be consistent with the purpose of the School Code the words must encompass any reduction in the extent of employment *** [otherwise] a board could merely nibble away and reduce one’s employment until economic necessity forced the tenured teacher to resign.” (Emphasis in original.) Caviness v. Board of Education of Ludlow Community Consolidated School District No. 142 (1978), 59 Ill. App. 3d 28, 31, 375 N.E.2d 157, 158; see also Birk v. Board of Education of Flora Community Unit School District No. 35 (1983), 120 Ill. App. 3d 181, 457 N.E.2d 1065, aff’d (1984), 104 Ill. 2d 252, 472 N.E.2d 407.

In Caviness, the court found that if a tenured teacher’s position was reduced to a part-time position, “the sum total of full-time teachers was decreased, thereby activating the ‘bumping’ privileges for teachers in ‘contractual continued service.’ To hold otherwise would simply emasculate the statutory tenure protections and circumvent the clear legislative intent sheltered under the canopy of the School Code.” Caviness v. Board of Education of Ludlow Community Consolidated School District No. 142 (1983), 59 Ill. App. 3d 28, 31, 375 N.E.2d 157, 159.

Courts have followed this reasoning and have held that a tenured teacher who accepted part-time teaching status did not relinquish status as a tenured teacher. Brown v. Board of Education, Galatia Community Unit School District No. 1 (1976), 38 Ill. App. 3d 403, 347 N.E.2d 791; Johnson v. Board of Education of Decatur School District No. 61 (1981), 85 Ill. 2d 338, 423 N.E.2d 903; Wilson v. Board of Education of Limestone-Waiters School District No. 316 (1984), 127 Ill. App. 3d 433, 468 N.E.2d 995.

Deem’s complaint alleged his tenured status and a mutually agreed-upon reduction in teaching to part time. Relying upon the rationale of Brown and Caviness for guidance, we hold that these allegations are sufficient to satisfy the section 24 — 12 requirements of a “teacher in contractual continued service” who is “removed or dismissed” due to a decision of the board to “decrease the number of teachers employed *** or to discontinue some particular type of teaching service.” Ill. Rev. Stat. 1985, ch. 122, par. 24 — 12.

Were we to hold otherwise, a tenured teacher who accepted part-time employment could never resume full-time teaching without a school board’s approval. Thus, a tenured teacher, who had agreed to accept part-time status, always could be required to remain part time even though there might be nontenured and less tenured teachers in positions which the tenured part-time teacher is qualified to teach. Such a holding would authorize a board to refuse to fill vacancies with a tenured part-time teacher who is qualified to fill the vacancy, a one-sided result not in the spirit of the tenure provisions of the School Code.

Our disposition of this issue raises a second. Could Deem claim a right to teach the biology courses in preference to the new teacher? Section 24 — 12 does not explicitly answer this question.

First, section 24 — 12 provides that before a tenured teacher is removed or dismissed, the board must first remove any nontenured or less tenured teachers whose position the tenured teacher is qualified to fill. Second, section 24 — 12 provides that a legally removed or dismissed tenured teacher has preferential rehiring rights to any vacancies that arise in “the following school term or within one calendar year from the beginning of the following school term” for which the tenured teacher is qualified. When teaching vacancies arise after this time period, a previously removed or dismissed tenured teacher no longer enjoys preferential rehiring rights. See Relph v. Board of Education of De Pue Unit School District No. 103 (1977), 51 Ill. App. 3d 1036, 366 N.E.2d 1125; Hartley v. Board of Education of Cerro Gordo Community Unit School District No. 100 (1978), 66 Ill. App. 3d 1021, 384 N.E.2d 535.

The Board contends that one year had expired before Deem attempted to exercise bumping rights. Assuming, arguendo, that the voluntary reduction to part time constituted a removal or dismissal, the Board contends that Deem could only exercise his bumping rights one year after the 1979-1980 school term, which, the Board notes, Deem failed to do by his own allegations. According to the Board, Deem’s requests during the 1984-1985 and following school years are a nullity since his recall rights no longer existed. Therefore, the Board argues that his complaint fails to state a cause of action under the statute.

Such a restrictive reading of section 24 — 12 would thwart the purpose of the School Code’s tenure provisions when applied to the facts of this case. As stated in Birk v. Board of Education of Flora Community Unit School District No. 35 (1983), 104 Ill. 2d 252, 257, 472 N.E.2d 407, 409:

“The primary purpose of the tenure provisions of the School Code is to give tenured teachers priority over. nontenured teachers [citation] ***. The legislature’s goal in creating teacher tenure was to assure continuous service on the part of teachers of ability and experience by providing those teachers with some degree of job security. [Citations.] Thus, a tenured teacher is entitled to a reading of section 24 — 12 which is consistent with its prime purpose of protecting those who [qualify] for its protections.”

The Board was clearly on notice that Deem desired to resume full-time teaching, and he made such demand within a year before the new teaching position was created and the new, less senior teacher was hired.

Since Deem has otherwise demonstrated his qualifications for protections under section 24 — 12, the spirit of the tenure law compels us to find from the record below that Deem stated a cause of action under the School Code.

A tenured teacher who agrees to a reduction in teaching load, who requests to be returned to full-time teaching, can assert “bumping rights” against a new, nontenured teacher, who has been hired to teach a newly created course which the tenured teacher is qualified to teach.

We intimate no opinion as to whether a teacher who voluntarily accepts a part-time position may thereafter exercise bumping rights against a less senior teacher who was employed by a Board, and likewise tenured, at the time of the voluntary reduction.

Deem’s complaint states a cause of action against the Board under section 24 — 12 of the School Code. We therefore reverse the circuit court and remand for further proceedings.

Reversed and remanded.

LEWIS, P.J., and GOLDENHERSH, J., concur.


author: JUSTICE WELCH

text:
    DOROTHY L. CARLISLE, Plaintiff-Appellee, v. STANLEY D. HARP, Defendant-Appellant.
    Fifth District
    No. 5—89—0093
    Opinion filed June 25, 1990.

      Paul D. Giamanco, of Paul D. Giamanco, P.C., of Mt. Vernon, for appellant.
    G. Patrick Murphy, of Winters, Brewster, Murphy, Crosby & Patchett, of Marion, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant, Stanley D. Harp, appeals from the circuit court of Franklin County’s amended judgment order entered October 28, 1988, and post-trial order entered January 27, 1989, denying Harp’s motion for judgment notwithstanding the verdict and motion for new trial. After a jury trial which lasted approximately five hours, the jury returned a verdict in favor of the plaintiff, Dorothy L. Carlisle, in the amount of $40,000 for the personal injury and property damage which resulted from an automobile accident with defendant.

Defendant argues as error on appeal the trial judge’s refusal to grant him leave to amend his answer during trial to add an affirmative defense of the plaintiff’s comparative negligence and resultant refusal to give defendant’s jury instructions and special interrogatory which concerned negligence on the part of the plaintiff. The negligence defendant wished to claim was that plaintiff failed to keep a proper lookout as she entered the intersection where the accident occurred. Defendant further argues as error that the trial judge abused his discretion in denying defendant’s motion for independent physical examination of the plaintiff pursuant to Supreme Court Rule 215 (107 Ill. 2d R. 215).

The automobile accident occurred at the intersection of Webster and Studell in Benton Township on April 16, 1986. The plaintiffs vehicle was traveling west on Webster while the defendant’s vehicle was traveling north on Studell. Plaintiff and her husband lived on the northeast corner of Webster and Studell. The plaintiff had just pulled her vehicle into the street from their driveway and entered the intersection when she was struck. Both plaintiff and defendant testified that their visibility was hampered by vegetation on the vacant lot on the southeast corner of Webster and Studell, which was located at plaintiff’s left and defendant’s right. This lot was overgrown with willows, bushes, briars and poison ivy and was referred to as “a jungle.” Both plaintiff and defendant testified that the lot had been in this condition for some time. Each party also testified that he or she had no stop sign from the respective approaches to the intersection.

Plaintiff testified that as she approached the intersection she looked left and right before entering but did not slow down, because she had the right of way. She testified that she did not see the defendant’s car before the impact, which crushed the front and rear doors on the driver’s side of her vehicle. Her car was struck at approximately the center of the intersection. Plaintiff’s car traveled through the intersection and finally came to rest in a ditch on the northwest corner of Webster and Studell.

The defendant, a rural mail carrier, was delivering mail on Studell in his 1984 Chevy Cavalier when the accident occurred. He had delivered mail on this route for many years prior to the accident. He testified that in making deliveries to the rural boxes he often drove sitting in the center of the vehicle and leaned out of the right or left window to deposit the mail.

Defendant testified that he had just made a delivery on Studell south of the intersection and was proceeding into the intersection when he first saw the plaintiff, about 10 feet before impact. He admitted that he drove into the intersection without having any idea what was coming from the right. He testified that plaintiff was looking straight ahead when he first saw her.

A neighbor, James Smith, testified that he did not see defendant slow down as he approached the intersection. However, Smith admitted that he did not actually see the accident because the porch where he was sitting was on the south side of the house.

After the accident plaintiff was treated by various physicians for back, hip and leg pain. She saw an orthopedic specialist in Wood River, Illinois, by the name of Dr. Chomirun whose evidence deposition was taken by the plaintiff 10 days prior to trial. Her local general practitioner, Dr. Bob Thompson, testified at the trial, which began on October 13, 1988. Plaintiff listed the names of both Drs. Chomirun and Thompson, along with their examination reports, in her answers to defendant’s interrogatories, in January 1988. Plaintiff served Rule 220 interrogatories on the defendant concerning any expert witnesses he expected to call (107 Ill. 2d R. 220), but defendant failed at any time to answer these interrogatories. The record also indicates that defendant neither served Rule 220 interrogatories on plaintiff, nor sought to take the discovery depositions of any of plaintiff’s treating physicians.

Plaintiff’s suit was filed in April 1987 and defendant filed his answer in January 1988, wherein he denied that he was the proximate cause of plaintiff’s injuries and property damage. A pretrial conference was held in March 1988, during which the trial was set for October 11, 1988, with final pretrial set for October 10, 1988. No discovery cutoff was set at this first pretrial conference.

Early in September 1988, defendant’s attorney sent a letter to plaintiff’s attorney asking that Mrs. Carlisle be made available for physical examination by an orthopedic surgeon named Dr. Froehling, whose evidence deposition defendant then planned to take prior to trial the following month. Defendant’s attorney also- inquired as to when the evidence deposition of Dr. Chomirun would be taken. When plaintiff’s attorney refused to produce plaintiff voluntarily for examination by Dr. Froehling, defendant filed his Rule 215 motion. This motion was received by the court on September 28, 1988, along with a motion to continue the trial. The court denied both of defendant’s motions on October 7, 1988, after argument of counsel, relying on the recent decision in Klingler Farms, Inc. v. Effingham Equity, Inc. (1988), 171 Ill. App. 3d 567, 525 N.E.2d 1172. Defendant renewed both motions at the final pretrial conference and the court again denied them.

At the start of defendant’s opening statement to the jury on October 13, 1988, his attorney stated that there was something plaintiff actually did to cause her own injury. Plaintiff immediately objected on the grounds that plaintiff’s comparative negligence was never pleaded by the defendant as an affirmative defense, and so this issue was not properly before the jury. Defendant argued at side bar that he was not required to plead comparative fault as an affirmative defense, but that the issue was raised by denying his own negligence alleged in plaintiff’s complaint. The judge disagreed; however, he allowed defendant to continue his statement including reference to plaintiff’s fault but reserved ruling on whether defendant could amend his answer to formally allege this affirmative defense until after he heard the evidence.

Defendant moved for a directed verdict both at the close of plaintiff’s case and his own. The court denied both motions and also ruled that defendant could not amend his answer because he found insufficient proof of plaintiff's negligence to send the issue to the jury and because the motion for leave to amend was not timely.

The first issue we will address is whether the trial court erred by refusing to grant defendant’s Rule 215 motion for an independent physical examination of plaintiff. Supreme court rules regarding such medical examinations of a party read in pertinent part as follows:

“(a) Notice; Motion; Order. In any action in which the physical or mental condition of a party *** is in controversy, the court, upon notice and for good cause shown on motion made within a reasonable time before the trial, may order the party to submit to a physical or mental examination by a physician suggested by the party requesting the examination ***. ***
* * *
(c) Physician’s Report. Within 21 days after the completion of the examination, and in no event later than lk days before trial, the examining physician shall prepare duplicate originals of a written report of the examination, setting out his findings, results of all tests made, his diagnosis and conclusions, and deliver or mail an original of his report and of all corrections, supplements, or additions thereto, to the attorney for the party requesting the examination and a duplicate original thereof to the attorney for the party examined ***.” (Emphasis added.) (107 Ill. 2d R. 215.)

The trial court has wide discretion in determining what is good cause and what is a reasonable time before trial. (Bean v. Norfolk & Western Ry. Co. (1980), 84 Ill. App. 3d 395, 401, 405 N.E.2d 418, 424.) The Bean case had similar factual circumstances to the case at bar in that the defendant’s Rule 215 motion was filed less than three weeks before the trial was scheduled to start. We upheld the lower court’s ruling denying the defendant’s motion as not an abuse of discretion even though defendant did not learn of the change in disability diagnosis for which he would need an opposing expert opinion until it took the deposition of plaintiff’s treating physician the month before trial was to begin. Because answers to interrogatories with the physician’s name listed were available seven months prior to his deposition, defendant had not shown good cause or that the motion had been made within a reasonable time before trial. (Bean, 84 Ill. App. 3d at 402, 405 N.E.2d at 424.) In the instant case, defendant did not argue that he had just learned of a sudden change in diagnosis or extent of plaintiff’s injuries, only that plaintiff would not make herself available for examination by a physician who presumably would be the defendant’s expert on the extent of plaintiff’s injuries. The purpose of the rule permitting the court to order a party to submit to physical or mental examination by a physician suggested by the party requesting examination is not to provide an expert witness for the litigant but to permit discovery. Jackson v. Whittinghill (1963), 39 Ill. App. 2d 315, 324, 188 N.E.2d 337, 341.

It appears from defendant’s argument at the pretrial conference that he was waiting until Dr. Chomirun’s evidence deposition was taken by plaintiff before he scheduled plaintiff’s examination by his own expert and that was what prompted the letter to plaintiff’s attorney in early September. However, defendant was provided with the identity of Dr. Chomirun and all other treating physicians to date when plaintiff answered defendant’s interrogatories in January 1988. A copy of Dr. Chomirun’s examination report was also attached to those answers. If defendant considered Dr. Chomirun to be plaintiff’s expert he could have sought the expert’s opinions, bases therefore, and other information to which he would necessarily have been entitled by way of Rule 220 interrogatories. (See 107 Ill. 2d R. 220.) This begs the question, however, of why defendant failed to schedule plaintiff’s examination either for discovery purposes or by his own expert, if indeed Dr. Froehling was his expert.

Defendant argued at the Rule 215 motion hearing that Rule 220 time limitations on preclusion of using an expert if not disclosed 60 days before trial did not apply if there was not a pretrial order in place setting a schedule for disclosure of experts. Defendant cited Illini Aviation, Inc. v. Walden (1987), 161 Ill. App. 3d 345, 514 N.E.2d 551, as authority to the court for this proposition. The trial court denied defendant’s motions for physical examination and continuance of the trial, citing as grounds Klingler Farms, Inc. v. Effingham Equity, Inc. (1988), 171 Ill. App. 3d 567, 525 N.E.2d 1172. In Klingler, we held that as the purpose of Rule 220 is to facilitate trial preparation by eliminating last minute disclosure of expert witnesses, the most reasonable interpretation of Rule 220 is that expert witness disclosure is mandatory at least 60 days prior to commencement of trial regardless of a court order scheduling such disclosure. (Klingler, 171 Ill. App. 3d at 571, 525 N.E.2d at 1175.) If defendant proposed to use Dr. Froehling as an expert, such proposal was not timely within the parameters of Supreme Court Rule 220. We therefore find that the trial court did not err in basing its decision to deny the motions for physical examination and continuance of trial on Klingler.

We further find that the Rule 215 examination which must necessarily have preceded Dr. Froehling’s opinion as an expert was not requested in a timely manner or under diligent circumstances. The express terms of Rule 215(c) require the examining physician’s report at least 14 days before trial. This was impossible unless the court also granted defendant’s motion to continue the trial. Failure to exercise due diligence in discovery mandates denial of a requested trial continuance under Supreme Court Rule 201(f). (107 Ill. 2d R. 201(f).) We conclude on the basis of the record that defendant was not diligent in his discovery of this case and so the trial court did not abuse its discretion in denying defendant’s motion for the independent physical examination of plaintiff pursuant to Supreme Court Rule 215.

Defendant’s second issue on appeal is whether the trial court erred in refusing to allow him to amend his answer to allege the comparative negligence of plaintiff, after trial had begun. Generally, “[a]t any time before final judgment amendments may be allowed on just and reasonable terms, *** adding new *** defenses, and in any *** pleading *** which may enable *** the defendant to make a defense.” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 616(a).) Whether to allow amendment of pleadings is within the discretion of the trial court, whose determination may not be disturbed on review in the absence of abuse, upon consideration of the timeliness of the amendment and whether the opponent was prejudiced or surprised thereby. (American Pharmaseal v. TEC Systems (1987), 162 Ill. App. 3d 351, 360, 515 N.E.2d 432, 437.) The court’s exercise of discretion should be liberally construed in favor of allowing amendments if it will further the ends of justice. (Beauvoir v. Rush-Presbyterian-St. Luke’s Medical Center (1985), 137 Ill. App. 3d 294, 303, 484 N.E.2d 841, 846.) However, where the facts sought to be alleged on the eve of or during trial are known to the party at the time of original pleading and no good reason is offered for their not having been filed at that time, leave to amend is properly denied. (First National Bank & Trust Co. v. Sousanes (1978), 66 Ill. App. 3d 394, 396, 384 N.E.2d 30, 31.) There is no absolute right to amend an answer and it is not favored after trial commences. DiBenedetto v. County of Du Page (1986), 141 Ill. App. 3d 675, 681, 491 N.E.2d 13, 18.

The record indicates that the defendant first raised the issue of plaintiff’s negligence in his opening statement to the jury and did not request leave to amend his answer until instructed by the court at side bar that contributory negligence of the plaintiff was an affirmative defense that had to be pleaded. There is no doubt that defendant was required to plead the contributory negligence of plaintiff as an affirmative defense and that his pleadings required amendment before this issue was properly before the jury. Section 2 — 613(d) of the Illinois Code of Civil Procedure was amended in 1985 to add reference to contributory negligence, and states:

“(d) The facts constituting any affirmative defense, such as *** that the negligence of a complaining party contributed in whole or in part to the injury of which he complains, *** and any ground or defense, whether affirmative or not, which, if not expressly stated in the pleading, would be likely to take the opposite party by surprise, must be plainly set forth in the answer or reply.” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 613(d).)

While a pleading may be amended even after judgment to conform the pleading to the proofs (Ill. Rev. Stat. 1985, ch. 110, par. 2— 616(c)), an affirmative defense which is not timely pleaded cannot be considered, even if the evidence suggests its existence. (First National Bank v. Village of Mundelein (1988), 166 Ill. App. 3d 83, 90, 519 N.E.2d 476, 481, cert. denied (1988), 121 Ill. 2d 569, 526 N.E.2d 829.) In the American Pharmaseal case the lower court was upheld on appeal for denying leave to amend defendant’s answer to add a new affirmative defense at the close of plaintiff’s case after the plaintiff filed a third amended complaint. The court reasoned that as the pleading defendant sought to file was substantially different from its earlier pleadings, the new defense unfairly surprised the plaintiff, who never had a chance to prepare for this defense. American Pharmaseal, 162 Ill. App. 3d at 353-54, 515 N.E.2d at 437.

In the instant case the plaintiff had prepared her case without any emphasis on her lack of negligence and she did not bother to deny negligence in her opening statement. The record does not indicate that defendant did not know of the facts concerning plaintiff’s failure to keep a proper lookout at the time he filed his answer in January 1988. To the contrary, the record indicates that he was mistaken about the legal necessity of alleging plaintiff’s negligence as an affirmative defense, which mistake he did not discover until the trial had begun. We find that this does not constitute a good reason for not filing the affirmative defense with the original pleading.

Further, that defendant merely denied that he was the proximate cause of plaintiff’s injury does not necessarily imply that plaintiff was the proximate cause of her own injury, elevating that issue to the point where it can be considered by the jury. After the supreme court’s abolishment of contributory negligence and adoption of comparative negligence in Alvis v. Ribar, a plaintiff no longer has the burden of proving that she was free from negligence as an essential part of her case. (Casey v. Baseden (1986), 111 Ill. 2d 341, 344, 490 N.E.2d 4, 5, citing Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886.) The supreme court further clarified the burden of proof issue in Casey v. Baseden, when it concluded that in fact the defendant now had the burden of proving the plaintiff’s negligence. (Casey v. Baseden, 111 Ill. 2d at 347, 490 N.E.2d at 6.) The court below found both that defendant had not proven plaintiff’s negligence to such an extent that there was a jury issue of fact and that he had not asked for amendment of his answer on a timely basis. The court noted, when it denied leave to amend defendant’s answer, that the merits of any affirmative defense could have been pleaded, were not pleaded and insufficient reason for failing to so plead prior to trial had been given. We therefore find that the court did not abuse its discretion in denying leave to defendant to amend his answer to assert this affirmative defense.

Because of this determination, we find that the court below did not err in failing to send the issue of plaintiff’s negligence to the jury and did not err in giving plaintiff’s instructions rather than defendant’s instructions and special interrogatory concerning negligence on the part of the plaintiff to the jury.

For the foregoing reasons the judgment of the circuit court of Franklin County is affirmed.

Affirmed.

HARRISON and GOLDENHERSH, JJ., concur.


text:
    OLNEY TRUST BANK, Plaintiff-Appellee, v. YVONNE K. PITTS, Defendant-Appellant (Unknown Owners et al., Defendants).
    Fifth District
    No. 5—89—0410
    Opinion filed June 27, 1990.

      Patricia A. Tomaw, of Newton, for appellant.
    Patrick M. Burke, of Brazitis & Burke, of Olney, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant, Yvonne Pitts (hereinafter Wife), brought this interlocutory appeal pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308) from the order of the circuit court of Richland County which denied her motion for summary judgment in a mortgage foreclosure action brought against her by plaintiff, Olney Trust Bank (hereinafter Bank). For reasons stated as follow, we affirm.

Lowell Wayne Pitts (hereinafter Husband) and Wife owned certain real estate in Richland County during the course of their marriage. Tract one of the real estate was solely owned by Husband; tract two was owned by Husband and Wife in joint tenancy. A third tract was also owned by Husband and Wife in joint tenancy. In 1981 Husband and Wife gave Bank a first mortgage on the three tracts, according to their respective interests, to secure a mortgage loan in the amount of $163,000. In January 1985, Husband and Wife gave Bank a second mortgage on the three tracts of real estate to secure a mortgage loan in the amount of $198,129.83. Bank later released tract three from the first and second mortgages, and this tract of real estate is not part of the controversy in the instant case.

Wife filed a petition for dissolution of marriage in June 1987. At that time, both first and second mortgage loans were in default. In July 1988, Husband conveyed his interest in the real estate to the Bank by way of a deed in lieu of foreclosure. By contemporaneous agreement, Husband also agreed that he would be jointly liable with Wife for whatever deficiency would remain after sale of the property. In the same document, Bank agreed to take immediate steps to foreclose Wife’s interest in the real estate and to sell the two tracts of land to Husband’s father for a total of $120,250; of which $60,250 represented Husband’s interest in the property and the remaining $60,000 of which represented Wife’s interest in the property. Bank delivered a quitclaim deed to Husband’s father at this time. Wife was not a party to the deed or agreement.

In July 1988 Bank filed a foreclosure suit against Wife, unknown owners and nonrecord claimants. Wife filed a motion for summary judgment, claiming that pursuant to section 15 — 1401 of the revised Illinois Mortgage Foreclosure Law, effective July 1, 1987 (Ill. Rev. Stat. 1987, ch. 110, par. 15—1401), when Bank accepted the deed in lieu of foreclosure from Husband it released her as mortgagor from personal liability and, as the mortgage debt was released, Bank was precluded from foreclosing her mortgage interest. The court denied Wife’s motion but certified the issue of law for purposes of interlocutory appeal under Supreme Court Rule 308. 107 Ill. 2d R. 308.

We initially note from the record that as to tract one, Husband was the sole owner, and therefore sole mortgagor, thereof. Thus the deed in lieu of foreclosure was effective to convey the entire interest in this tract to the Bank. At issue is what interest was conveyed to the Bank in tract two, the real estate owned by Husband and Wife as joint tenants with right of survivorship.

Under common law, the essential elements of a joint tenancy require that the several tenants have one and the same interest accruing by one and the same conveyance, commencing at the same time and held by one and the same undivided possession. (Kane v. Johnson (1947), 397 Ill. 112, 116, 73 N.E.2d 321, 324.) The unities of interest, title, time, and possession are necessary and requisite to both the creation and continuance of the joint tenancy. (Jackson v. O’Connell (1961), 23 Ill. 2d 52, 55, 177 N.E.2d 194, 195.) The voluntary or involuntary destruction of any of the unities by one of the joint tenants will sever the joint tenancy. (Harms v. Sprague (1984), 105 Ill. 2d 215, 220, 473 N.E.2d 930, 932.) A joint tenancy, even though between husband and wife, can be severed when one of the tenants conveys his interest to a third person. (Johnson v. Johnson (1973), 11 Ill. App. 3d 681, 684, 297 N.E.2d 285, 288.) A joint tenant can sever a joint tenancy by conveying his or her interest without the consent or permission of the other. (Johnson v. Beneficial Finance Co. of Illinois, Inc. (1987), 154 Ill. App. 3d 672, 674, 506 N.E.2d 1025, 1027.) Under common law, joint tenants were said to hold “by the moiety or half and by the whole,” which means that such tenants were seized of the entire estate for the purposes of tenure and survivorship but of only an undivided part or interest for the purpose of forfeiture or immediate alienation. (20 Am. Jur. 2d Cotenancy and Joint Ownership §7 (1965).) We find that at the time Husband conveyed his interest in tract two to the Bank by way of the deed in lieu of foreclosure, the joint tenancy was severed and the Bank received an undivided one-half interest in tract two thereby. Similarly, Wife retained an undivided one-half interest in tract two.

Section 15 — 1401 of the Illinois Mortgage Foreclosure Law provides as follows:

“Deed in Lieu of Foreclosure. The mortgagor and mortgagee may agree on a termination of the mortgagor’s interest in the mortgaged real estate after a default by a mortgagor. Any mortgagee or mortgagee’s nominee may accept a deed from the mortgagor in lieu of foreclosure subject to any other claims or liens affecting the real estate. Acceptance of a deed in lieu of foreclosure shall relieve from personal liability all persons who may owe payment or the performance of other obligations secured by the mortgage, including guarantors of such indebtedness or obligations, except to the extent a person agrees not to be relieved in an instrument executed contemporaneously. A deed in lieu of foreclosure, whether to the mortgagee or mortgagee’s nominee, shall not effect a merger of the mortgagee’s interest as mortgagee and the mortgagee’s interest derived from the deed in lieu of foreclosure.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 15 — 1401.)

Wife urges that she was relieved of personal liability on the mortgage note because of Husband’s deed in lieu of foreclosure given to the Bank by way of the third sentence in this statutory provision, that accordingly the mortgage lien must fail, and she is the sole owner of the previously encumbered property. When a mortgagee has received full satisfaction and payment of all sums due to him from the mortgagor, the mortgagee is required to execute a release of the mortgage; said release extinguishes the lien of the mortgage and bars an action for foreclosure. (Petkus v. St. Charles Savings & Loan Association (1989), 182 Ill. App. 3d 327, 330, 538 N.E.2d 766, 768.) If we were to accept Wife’s interpretation of this statute, however, the lien extinguished would be as to Wife’s undivided one-half interest in tract two, not as to the entire interest in the property.

The Bank, on the other hand, urges that the statute must be interpreted as to individual rather than joint mortgagors as the deed was given by only one mortgagor in this case. Accordingly, Bank proposes that Husband would be entitled to relief from personal liability except that he agreed otherwise in the contemporaneous agreement with the Bank. Bank further urges that Wife is not relieved of personal liability, nor is the mortgage released as to her interest in the property. Finally, Bank argues that the last sentence in section 15— 1401, which provides that acceptance of the deed does not effect a merger of the mortgagee’s lien and title interests, supports its proposed interpretation of this section of the Act.

Where a statute’s meaning is clear, it is applied without resorting to judicial interpretation; however, where a statute is unclear or susceptible of more than one meaning, it must be interpreted to clarify its application. (Penman v. Board of Trustees of Illinois Eastern Community Colleges (1981), 94 Ill. App. 3d 139, 144, 418 N.E.2d 795, 799.) The cardinal rule of statutory construction is to ascertain and give effect to the legislative purpose and intent of the statute. (Reynolds Metals Co. v. Pollution Control Board (1982), 108 Ill. App. 3d 156, 160, 438 N.E.2d 1263, 1267.) Although it is generally unnecessary to look beyond the language of a statute to arrive at the legislative purpose and intent, where different interpretations are urged, the court must look to the reasons for the enactment of the statute and purposes to be gained thereby and construe the statute in a manner which is consistent with that purpose. (Reynolds Metals, 108 Ill. App. 3d at 160, 438 N.E.2d at 1267.) Statutes are construed with reference to the law existing prior to their enactment, in order to ascertain their purpose. (In re Marriage of Rogers (1981), 85 Ill. 2d 217, 221, 422 N.E.2d 635, 638.) Unless otherwise defined, words which appear in a statute are intended to have their ordinary and popular meaning. (Richter v. Collinsville Township (1981), 97 Ill. App. 3d 801, 807, 423 N.E.2d 549, 554.) Aids in ascertaining legislative intent include such factors as reason for enactment, contemporaneous conditions, existing circumstances, and remedy sought. Richter, 97 Ill. App. 3d at 807, 423 N.E.2d at 554.

Steven C. Lindberg and Wayne F. Bender examined the changes made by the revised Illinois Mortgage Foreclosure Law in an article appearing in the October 1987 Illinois Bar Journal and made the following observations about its legislative purpose as a whole, as well as the intent of section 15 — 1401:

“The Illinois Mortgage Foreclosure Law (IMFL) was intended by its drafters to integrate into one statute as much of the law of mortgage foreclosure as possible. ***
The prior foreclosure laws were scattered throughout various sections of the Illinois Revised Statutes in addition to several areas which were previously only set forth in case law. The new law codifies the prior statutory law and case law on the subject.
* * *
The premise behind deeds in lieu of foreclosure is to allow a borrower to transfer title to the lender in exchange for a release of his or her obligations under the note and mortgage.
Prior to the enactment of IMFL, there was no statutory provision for deeds in lieu of foreclosure. In some instances, a deed was simply given by the borrower to the lender in exchange for a release of mortgage. Frequently, there were no contracts, affidavits or other documents evidencing the transaction and, in some cases, lenders even failed to provide releases to the borrowers at the time of the transaction. More prudent lenders required title searches and preparation of affidavits and ALTA statements. Only then, pursuant to the contract, was a release of mortgage exchanged for a deed from the borrower.
IMFL does not alter that which had been implicit in prior practice and, under section 15 — 1401, makes it explicit that ‘acceptance of a deed in lieu of foreclosure shall relieve from personal liability all persons who may owe payment[s] or the performance of other obligations secured by the mortgage ....’ IMFL now makes it absolutely clear that a deed in lieu of foreclosure releases all mortgagors from personal liability.” Lind-berg & Bender, The Illinois Mortgage Foreclosure Law, 76 Ill. B.J. 800, 800-02 (1987).

We agree with Bank that the statute must be construed according to each mortgagor. The statute’s plain meaning uses the singular, “mortgagor” rather than “mortgagor or mortgagors.” Moreover, the term “mortgagor” is defined in the statute as the “person whose interest in the real estate is the subject of the mortgage.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 15 — 1209.) The legislature chose not to define the singular term as either singular or plural, which would cover the case of joint mortgagors. In addition, this interpretation would allow each mortgagor to bargain with the mortgagee as to his interest in the property and to exchange a deed in lieu of foreclosure as to that interest for a release of personal liability for the deficiency judgment that could result if the mortgagee were forced to foreclose the mortgage. We find that this interpretation is consistent with joint tenancy law which allows a joint tenant to convey his interest without the other’s consent, and will result in judicial economy, as well.

Moreover, as noted above, we interpret the term “personal liability” in section 15 — 1401 to refer to the liability for deficiency after sale of the property which the mortgagor owes pursuant to the mortgage note and for which the mortgagor receives a release in exchange for the deed in lieu of foreclosure. Wife’s proposed interpretation of the statute, which would define “personal liability” as the existing mortgage debt on the promissory notes prior to foreclosure, is inconsistent with prior and current mortgage law which discusses the term “personal liability” in connection with a deficiency judgment. For example, the prior mortgage statute allowed enforcement of deficiency judgments against “defendants personally liable for the mortgage debt.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 95, par. 56.) Likewise, section 15 — 1504 of the current statute, which outlines the form for foreclosure complaints, requires the naming of “defendants claimed to be personally liable for deficiency, if any” (emphasis added) (Ill. Rev. Stat. 1987, ch. 110, par. 15 — 1504(a)(3)(N)), in connection with the information concerning the mortgage. Similarly, section 15 — 1402, which provides for the termination of a mortgagor’s interest by way of a consent foreclosure, provides that “the mortgagee offers, in connection with such a judgment, to waive any and all rights to a personal judgment for deficiency against the mortgagor and against all other persons liable for the indebtedness or other obligations secured by the mortgage.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 110, par. 15-1402(a)(1).

We further believe that Bank’s nonmerger argument is consistent with this interpretation of “personal liability.” The doctrine of merger provides that when the same person who is bound to pay is also entitled to receive, there is an extinguishment of rights, such that debtor and creditor become the same person and there can be no right to put in execution. (Donk Brothers & Co. v. Alexander (1886), 117 Ill. 330, 338, 7 N.E. 672, 676.) Section 15-1401 specifically provides that a deed in lieu of foreclosure given to the mortgagee shall not effect a merger of the mortgagee’s interest as mortgagee and the interest derived from the deed in lieu of foreclosure. Because there is no merger, the mortgage debt is not satisfied or extinguished.

To illustrate the effect of nonmerger of the lien and title interest by way of analogy, the release of the deficiency judgment received by the mortgagor in exchange for the deed in lieu of foreclosure is similar to the discharge received by a debtor in bankruptcy. While it is a general rule that a release of the debt secured by a mortgage operates as a discharge of the mortgage, a basic tenant of bankruptcy law holds that a discharge in bankruptcy releases the debtor from personal liability but does not discharge the mortgage lien. (55 Am. Jur. 2d Mortgages §462 (1971), citing Bush v. Person (1855), 59 U.S. (18 How.) 82, 15 L. Ed. 273.) The mortgagee may foreclose the mortgage lien following a mortgagor’s discharge in bankruptcy but is forbidden from obtaining or enforcing a deficiency judgment against the mortgagor. (See 11 U.S.C. §524(a) (1988).) A discharge in bankruptcy is analogous to the statute of limitations in that it does not annul the original debt but merely suspends the right of action for its recovery. (Local Loan Co. v. Norman (1943), 319 Ill. App. 114, 48 N.E.2d 803.) We note that the Illinois Mortgage Foreclosure Law is specifically supplemented by general principles of law, including bankruptcy law, except to the extent displaced by a particular provision in the Law. Ill. Rev. Stat. 1987, ch. 110, par. 15 — 1106(e).

In summary, a discharge in bankruptcy does not constitute payment or extinguishment of obligations which are discharged but merely serves to bar their enforcement by legal proceedings. We likewise interpret section 15 — 1401 and hold that acceptance of the deed in lieu of foreclosure does not extinguish the mortgage debt, but does bar the mortgagee from obtaining or enforcing a deficiency judgment. Wife’s interpretation of “personal liability” which would wipe out both debt and lien is inconsistent with the express disavowal of merger in section 15 — 1401.

We believe the legislature intended to provide for an alternate to foreclosure by codifying the deed in lieu of foreclosure practice, but wanted to make sure that the mortgagee would be precluded from obtaining and enforcing deficiency judgments against the mortgagor, joint mortgagor, guarantor, or any other person owing payment of the mortgage note. We therefore hold that while the Bank may properly foreclose Wife’s interest in tract two, it may not obtain a deficiency judgment against her because she did not agree to be personally liable. Accordingly, the court below is instructed that all further proceedings hereunder be consistent with this holding, and the order of the circuit court of Richland County from which this interlocutory appeal is taken is affirmed.

Affirmed.

HARRISON and HOWERTON, JJ., concur.


text:
    PAUL W. DOCKERY, Plaintiff-Appellant, v. THE VILLAGE OF STEELEVILLE, Defendant and Third-Party Plaintiff-Appellee (Steeleville American Legion Post No. 480, Defendant and Third-Party Defendant; Illinois Fireworks Company et al., Defendants).
    Fifth District
    No. 5—89—0617
    Opinion filed June 28, 1990.

      Brad L. Badgley, of Heiligenstein & Badgley, P.C., of Belleville, for appellant.
    William A. Alexander, of Troutt, Alexander, Popit & Warner, of Benton, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiff, Paul W. Dockery, appeals from a summary judgment entered August 8, 1989, by the circuit court of Randolph County in favor of defendant, Village of Steeleville, a municipal corporation, on count II of plaintiff’s fourth amended complaint. That count alleges that on July 4, 1987, plaintiff was struck in the face and injured by an aerial bomb while attending a fireworks display at the Steeleville American Legion Post, that the Village of Steeleville, through its police department, had voluntarily assumed the duty to maintain crowd control and traffic management for spectators, but that it had performed these duties negligently. Specifically, the complaint alleges that the Village of Steeleville was negligent in that it:

“a) Allowed spectators, including the plaintiff, Paul W. Dockery, to watch the fireworks display in a position which was in the direct flight path of said fireworks display;
b) Failed to keep the spectators, including the plaintiff Paul W. Dockery, at a safe and proper distance from the site where the fireworks were being discharged;
c) Failed to maintain proper crowd control and traffic management.”

Defendant filed a motion for summary judgment alleging that plaintiff’s claim is barred by section 4 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act, which provides immunity to local public entities for failure to provide adequate police protection or service. (Ill. Rev. Stat. 1987, ch. 85, par. 4 — 102.) The trial court agreed and granted summary judgment in favor of defendant on August 8,1989.

Section 4 — 102 of the Tort Immunity Act provides:

“Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes, failure to detect or solve crimes, and failure to identify or apprehend criminals. This immunity is not waived by a contract for private security service, but cannot be transferred to any non-public entity or employee.” (Ill. Rev. Stat. 1987, ch. 85, par. 4— 102.)

The trial court held that crowd control and traffic management at the Steeleville Fourth of July celebration constituted “police functions” and fell within the immunity provided by the above statute. Plaintiff appeals, arguing that section 4 — 102 is intended to provide immunity only for the police functions of enforcing criminal laws, protecting the general public from the commission of crimes and making arrests, and not for such other functions as traffic management and crowd control. Plaintiff argues that the Village’s voluntary assumption of crowd control and traffic management at an event held by a private entity (the American Legion Post) clearly falls outside the municipality’s duty to protect the community at large and therefore outside the immunity provided by section 4 — 102.

While plaintiff cites numerous cases in which the immunity was held to apply to the functions of enforcing criminal laws and making arrests (Luber v. City of Highland (1986), 151 Ill. App. 3d 758, 502 N.E.2d 1243; Laco v. City of Chicago (1987), 154 Ill. App. 3d 498, 507 N.E.2d 64; Jamison v. City of Chicago (1977), 48 Ill. App. 3d 567, 363 N.E.2d 87), none of those cases restricted or limited the immunity to only those functions. Indeed, in Long v. Soderquist (1984), 126 Ill. App. 3d 1059, 467 N.E.2d 1153, it was held that a police officer’s failure to light flares near the scene of an automobile accident, failure to direct the drivers of the vehicles involved in the accident to remove those vehicles from the highway, failure to warn other drivers of the presence of the vehicles on the highway and failure to call for assistance, all arguably elements of “traffic control,” were functions for which the municipality was immune from liability. The police officer’s failings were viewed by the court as the “failure to provide adequate police protection or service” within the meaning of section 4 — 102.

In Kavanaugh v. Midwest Club, Inc. (1987), 164 Ill. App. 3d 213, 221, 517 N.E.2d 656, the court concluded that the phrase “adequate police protection or service” includes the police function of responding to a call of a traffic matter involving a motor vehicle that had been driven off the roadway and into a nearby retention pond. The court held that “police service” may include police aid, assistance or rescue because those functions are commonly recognized as an important part of police services.

We think that crowd control and traffic management at a city-wide celebration are included in the phrase “police protection or service” as found in section 4 — 102 of the Tort Immunity Act because, in many communities, these functions are recognized as important parts of police services. Section 4 — 102 provides immunity for a local public entity’s failure to provide adequate police protection or service. Plaintiff’s complaint does not allege that the Village committed some affirmative act such as directing plaintiff to an unsafe area to watch the fireworks display. Instead, the complaint alleges that the Village provided inadequate police protection to its citizens in that it allowed them to watch, or failed to prevent them from watching, the fireworks display from an unsafe area. The Village is immune from liability for failure to provide adequate police protection or service. The trial court properly granted summary judgment in favor of defendant, Village of Steeleville, on count II of plaintiff’s fourth amended complaint.

For the foregoing reasons the judgment of the circuit court of Randolph County is affirmed.

Affirmed.

HARRISON and CHAPMAN, JJ., concur.