dissenting:
Two issues are raised in this appeal: (1) Whether Judge Canel’s original order of dismissal operated as res judicata upon the complaint at bar; and (2) Whether the complaint was barred by the Statute of Limitations. It must be emphasized that these two issues are separate and distinct and that different statutes, Supreme Court Rules and case law pertain to each respectively. To illustrate, although Supreme Court Rule 273 is tire focal point for determining tire res judicata issue, it has no bearing on the Statute of Limitations issue. Similarly, the cases of Tidwell v. Smith, 57 Ill.App.2d 271, 205 N.E.2d 484; Ray v. Bokorney, 133 Ill.App.2d 141, 272 N.E.2d 836, and Quirino v. Chicago Tribune-New York News Syndicate, Inc., 10 Ill.App.3d 148 are pertinent to the Statute of Limitations issue, but have no bearing on the res judicata issue. Although this distinction may appear self-evident, it has not been observed in the appellate briefs at bar, and I believe that the procedural significance of this case dictates our utmost efforts for clarity.
I would hold that plaintiff’s second complaint was barred by the doctrine of res judicata.
I do not agree that Section 24a of the Limitations Act is a statute “otherwise specifying” for purposes of Supreme Court Rule 273. The majority opinion to the contrary relies primarily upon the authority of Mages Sports Arena v. Winston Park Shopping Center, 112 Ill.App.2d 139, 229 N.E.2d 141. However, as I interpret that case, its express holding is that pursuant to the Supreme Court order adopting Supreme Court Rules retroactively in 196, Rule 273 would not be applied, due to the patent injustice of a retroactive application under the facts of that case. Subsequent language in Mages to the effect that Section 24a is a statute which “otherwise specifies” constituted only dicta and should not now be elevated to the stature of binding precedent. Even assuming arguendo that such language did constitute an “alternative holding,” I believe that such a holding as well as the majority opinion in the case at bar unduly enlarge the intent of our legislature in enacting Section 24a and undermine tire intent of our Supreme Court in enacting Supreme Court Rule 219 (c).
Section 24a is a limitations statute, intended to extend the period of limitations under certain circumstances. It provides for the refiling of an action, regardless of whether the applicable limitations period has run, within one year of any of the following dispositions: (1) Judgment for plaintiff which is reversed on appeal, when the reviewing court does not decide the merits adversely to the plaintiff, See Carboni v. Bartlett, 290 Ill.App. 351, 8 N.E.2d 722; (2) Verdict for plaintiff, but judgment against plaintiff upon matter alleged in arrest of judgment; (3) Nonsuit; (4) Dismissal for want of prosecution. Plaintiff has cited numerous Illinois cases which state that the purpose of Section 24a is to facilitate disposition of litigation upon the merits and to avoid frustration upon grounds unrelated to the merits. (Roth v. Northern Assurance Co., 32 Ill.2d 40, 203 N.E.2d 415,) However, such pronouncements have consistently been made within the factual context of an expired limitations period which, but for Section 24a, would have barred a refiling. Neither the text of Section 24a, nor the cases which have interpreted it, suggest that it was intended to determine whether or not a particular order of dismissal operates as an adjudication uopn the merits. Prior to 1967 that determination depended upon common law and the unique facts and circumstances attending the order. Subsequent to 1967 Supreme Court Rule 273 has governed. Thus, Section 24a, a remedial statute concerning periods of limitation, is in fact complementary to Supreme Court Rule 273, which concerns the res judicata effect of orders of involuntary dismissal.
I believe that the majority opinion, by misconstruing Section 24a, will have the effect of excising the power of trial courts to dismiss suits with prejudice for failure to comply with rules of discovery, a power expressly conferred by Supreme Court Rule 219(c). Similarly, trial judges who seek to dismiss with prejudice for want of prosecution or pursuant to Supreme Court Rule 103 will find their efforts frustrated by todays decision. It is disingenuous to suggest that the mere inclusion of the phrase, “with prejudice” in an order of dismissal will protect a court’s right to invoke the drastic remedies which are inherently held or conferred by Supreme Court Rules. Nothing in Section 24a suggests that its remedial provisions are limited to situations in which the order of dismissal is silent concerning the res judicata effect of the order. (This is not surprising, since Section 24a is no more than a limitations statute.) Thus, by holding that Section 24a is a statute “otherwise specifying,” the majority opinion is plugging into Rule 273 a statute which will provide a one year refiling period for any litigant that is involuntarily dismissed, regardless of whether the dismissal order bears the words "with prejudice,” “res judicata” or any other language expressing the contrary intent-of the trial comt. Clearly this was not the intention of our Supreme Court or our legislature, but it is the unavoidable consequence of thé majority opinion.
The majority opinion implies that its holding, that Section 24a is a statute “otherwise specifying,” is essential to protect litigants from being “booby-trapped” by “silent” dismissal orders i.e. orders which do not express on their face their res judicata effect. At one time this would have been a compelling argument. It is a basic tenet of the doctrine of res judicata that an order of dismissal may bar the refiling of the same cause of action if the dismissal order derives from an adjudication upon the merits. (I.L:P. Judgments, § 321.) Prior to 1967 application of this rule spawned a substantial body of case law concerning the res judicata effect of various types of dispositions and orders, each case posing the issue of whether the subject disposition or order derived from an adjudication upon the merits. In 1967, however, Supreme Court Rule 273 was adopted with the expressed purpose of “set[ting] to rest the question of the effect of an involuntary dismissal other than those excepted by the rule.” (Supreme Court Rule 273, Committee Comments.) No further clarification is now necessary. The Supreme Court has already provided by the express terms of Rule 273 that a “silent” dismissal order operates as an adjudication upon the merits, thus apprising aggrieved litigants that the appropriate remedy is an appeal rather than a refiling of tire action.
I would therefore hold that Section 24a is not a statute “otherwise specifying” as that phrase is used in Supreme Court Rule 273. For me, the more difficult question is whether the order of dismissal entered by Judge Canel "otherwise specifies,” in which event plaintiff would still prevail on this appeal.
The original order of dismissal reflects that it was entered as a sanction against plaintiff for failure to comply with the Supreme Court Rule governing pretrial conferences. Clearly, this did not constitute an adjudication upon the merits. Since the order, on its face, belies the existence of an adjudication upon the merits, it might be argued that the order “otherwise specifies” for purposes of Rule 273. Such a contention, however, would misconstrue the specific language and the general purpose of Supreme Court Rule 273. That Rule creates a presumption that a non-exempt dismissal order “operates as” an adjudication upon the merits, not that there has in fact been an adjudication upon the merits. It is directed to the effect of dismissal orders, not to their underlying basis. This is clearly stated in the Committee Comments. Therefore, unless a dismissal order reflects in some manner that it was not intended to bar a subsequent refiling, it should operate as an adjudication upon the merits regardless of whether there has been an adjudication upon the merits. (See People v. Gulf, Mobile & Ohio R.R. Co., 125 Ill.App.2d 473, 261 N.E.2d 221.) Appearance of the phrase, “without prejudice,” in an order would certainly rebut the presumption created by Rule 273. (In re Estate of Crane, 243 Ill.App. 327, 99 N.E.2d 204). However, an order need not contain particular magic words in order to “otherwise specify.” Each order should be interpreted on the basis of the disposition thereby reflected and of the precise language utilized.
In the case at bar, the original order of dismissal provided in pertinent part: “IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that tins cause be and the same is hereby dismissed for noncompliance with Supreme Court Rules 218 and 219(c) and the order of this Court entered on May 11, 1970.” It was within the power of the court to dismiss plaintiffs suit with or without prejudice. (Ill. Rev. Stat. 1969, ch. 110A, par. 219(c).) Thus, there is nothing inherent in the nature of Judge Canel’s disposition which would suggest an intent to allow refiling of the action. Nor is there language within the order indicating such an intent. Under these circumstances, I conclude that the order of dismissal did not "otherwise specify,” as that phrase is used in Supreme Court Rule 273.
I would hold that neither the order of dismissal entered by Judge Canel nor a statute of this state “otherwise specifies” as that phrase is used in Supreme Court Rule 273. Judge Canel’s order operated as an adjudication upon the merits, barring subsequent refiling of the cause of action. I express no opinion as to whether the original order of dismissal was justified by plaintiff’s conduct. Plaintiff chose not to appeal that order, despite the availability of an appellate remedy. (See Federenko v. Builders Plumbing Supplies, 123 Ill.App.2d 129, 130, 260 N.E.2d 41.) She should be bound by her election. I also express no opinion as to whether the complaint at bar was barred by the Statute of Limitations. I would affirm.