dissenting:
I am unable to agree with my colleagues upon the substantive and procedural issues found in this case.
On December 17, 1974, the defendant Wesley Construction Company filed its motion to dismiss upon the basis that the death of the plaintiff had been suggested of record and no motion for substitution had been filed and upon the further basis that the cause of action had abated. The court granted the motion in a judgment order, final in form. That order was entered on December 18. At that time, there were other parties defendant and the trial court did not then nor later make a finding regarding appealability by one of multiple defendants as contemplated and required by Supreme Court Rule 304 (Ill. Rev. Stat. 1973, ch. 110A, par. 304).
Thereafter, on December 23, the court granted a like motion of the defendant Harlan E. Moore and Company. The docket entry was to the effect that the case was dismissed and the cause stricken; and the entry was followed by the phrase “see order.” There is no order. It seems reasonable to conclude that under Rule 272 (Ill. Rev. Stat. 1973, ch. 110A, par. 272) there is not now nor was there then a final judgment. Here again, there was no finding under Rule 304.
There were subsequent proceedings by motions and countermotions, all preceding the notice of appeal. The procedural defects above alluded to are not cured by the subsequent proceedings.
Upon the merits, this case is concerned with an alleged cause of action for injuries that occurred on February 20,1968. The complaint was filed in July 1969, and apparently nothing was done until some two years thereafter. The plaintiff died on August 5,1974, and the suggestion of his death was filed by one of the defendants in August 1974. The proof of service shows that only counsel for the other defendants and counsel for the then-deceased plaintiff were given notice of the filing of the suggestion of death.
I recognize that the sanction to be employed is discretionary with the trial court. Upon the basis of this record, I believe that the sanction that was employed was too severe.