Lapka v. Chicago City Railway Co.

Mr. Justice Freeman delivered the opinion of the court. It is urged in behalf of plaintiff that the cause should not have been dismissed and that the motion to reinstate should not have been denied for want of a declaration on file, since it is said plaintiff had until ten days before the second term after service of summons on the defendant, to file her declaration or the same time after notice of appearance by the defendant; citing English v. Wilkins, 163 Ill., 542; Johnson v. Noble, 37 Ill. App., 314; Collier v. Grey, 105 Ill. App., 485-486. In the present instance, however, the cause ivas not dismissed for want of a declaration on file, but was dismissed for want of prosecution. It is argued that counsel for plaintiff was diligent in watching the case and was not remiss at the time the cause was dismissed; and that a motion for leave to file certain affidavits which it was sought to file on May 27, 1903, after the overruling of plaintiff’s motion to reinstate the cause, was erroneously denied. The question, however, is not merely whether the plaintiff’s attorney was diligently endeavoring to be represented in court when the case should be reached on the trial call, but whether he was properly prosecuting the suit. One of the affidavits which the court refused leave to file set forth, among other things, that plaintiff had previously entered into negotiations with defendant for a settlement of plaintiff’s claim. We do not regard this as material nor the alleged fact set up in the other rejected affidavit to the effect that plaintiff had a meritorious cause of action. Whatever motive or strategy may have influenced the failure of plaintiff’s attorney to cause the defendant to be summoned and to prosecute the suit, such strategy or hope of advantage for the client to be gained by delay, can not effect the fact that there had not been any effort to prosecute the suit. We are obliged to conclude that the Circuit Court committed no error in the exercise of a sound legal discretion when it dismissed the action for want of prosecution. Brunswick-Balke Collender Co. v. O’Donnell, 101 Ill. App., 533-535. Finding no error the judgment of the Circuit Court must be affirmed. Affirmed.