dissenting.
I fully agree with the majority that this case must be dismissed under principles of res judicata if the July 14, 1975, order of the Circuit Court of Cook County was or became a final order. Because I believe that plaintiffs’ failure to amend their state court complaint within the 28 days granted by the order, or to seek leave to amend within the nearly three years that have since transpired, made the order a final one, I respectfully dissent.
Illinois Supreme Court Rule 273 does, of course, make it clear that an involuntary dismissal of an action on any ground other than the three specified therein (none of which apply here) operates as res judicata. Brainerd v. First Lake County National Bank of Libertyville, 1 Ill.App.3d 780, 275 N.E.2d 468, 470 (1971), on which the majority relies, points out, however, that
[e]ven before the rule, a dismissal with an election to stand on the complaint was deemed a final, appealable order and a bar to future suits by the plaintiff against the same defendants arising out of the same transaction. [Citations omitted.]
Nothing in Rule 273 purports to undercut this common law rule, and I cannot conceive that the Illinois courts would not construe plaintiffs’ apparently total inaction on their state court lawsuit as an election to stand on the complaint filed therein.
The authorities on which my brothers rely do not persuade me otherwise. See Bates v. Ulrich, 38 Ill.App.3d 203, 347 N.E.2d 286 (1976); Brainerd, supra; Campbell v. Harrison, 16 Ill.App.3d 570, 306 N.E.2d 643 (1973); Gray v. Starkey, 41 Ill. App.3d 555, 353 N.E.2d 703 (1976); Stutzke v. Edwards, 58 Ill.App.3d 832, 16 Ill.Dec. 296, 374 N.E.2d 1071, No. 76-571 (1978). Bates does say that a trial judge’s award of costs is probative of his intent that the underlying order be final, because nonfinal orders do not create authority to award costs, but the case surely does not hold or even imply that the lack of an award of costs indicates nonfinality. Brainerd only holds that a dismissal of an action with prejudice for failure to amend within the time granted by an earlier order operates on the merits, not that the later nailing-down order is a prerequisite to finality and operation on the merits in circumstances such as are before us. Campbell, relying on Brainerd, says only that waiting for the forthcoming nailing-down order before filing a notice of appeal did not waive the right to appeal. Gray holds that a dismissal with leave to amend to correct an easily remedied technical deficiency is not a final judgment. There is, of course, no suggestion that the dismissal herein was of that nature.
Stutzke does contain some language which might appear to support the rule articulated by the majority, but I think the language unfortunate dicta and the case clearly non-dispositive. First, the dismissal in Stutzke was merely of two counts of a complaint, not of the whole complaint and certainly not of the action. As the court properly noted, Illinois Supreme Court Rule 273 thus did not apply at all, quite unlike this case. Second, while the court indicated that a trial court has discretion to allow amendment after the time specified in a dismissal order, it noted that there was authority both ways as to whether it would be an abuse of that discretion to grant leave 52 days after the granted time had expired. I have no doubt what the court would have thought about an attempt to revive an abandoned action three years later. Finally, Stutzke placed primary reliance on Maple Investment and Development Corporation v. Skore, 38 Ill.App.3d 654, 348 N.E.2d 498 (1976), which involved *415the totally inapposite holding that a denial of a motion to vacate a judgment with leave to file a motion to open the judgment, which denial also ordered a stay of execution and further proceedings until further order of the court (no further order having ever been entered), did not terminate the litigation and was thus not a final judgment. The Stutzke court specifically emphasized the statement in Maple Investment that an order denying a petition to vacate a judgment but allowing 30 days to file an amended petition was not a final, appealable order. For this point, Maple Investment cited Vosnos v. Wenzel, 35 Ill. App.2d 390, 183 N.E.2d 193 (1962), which involved an attempt to appeal during the 30-day leave period.
I simply do not believe that the Illinois courts would regard the order involved here as anything but final at this point, and I would accordingly affirm the judgment of the district court.