Dillie v. Bisby

459 N.E.2d 1097, 121 Ill. App. 3d 559, 77 Ill. Dec. 1, 1984 Ill. App. LEXIS 1442

Opinions

JUSTICE HEIPLE

delivered the opinion of the court:

In this personal injury action, the defendants filed motions to dismiss with prejudice because of the plaintiff’s failure to exercise due diligence in obtaining service of process after the statute of limitations had run. (87 Ill. 2d R. 103.) The plaintiff filed a motion for voluntary dismissal. The plaintiff’s motion was granted, and the defendants’ motions were denied. The defendants appeal.

The plaintiff correctly argues that an order granting a motion for voluntary dismissal and denying a motion to dismiss is not final or appealable. Denial of a motion to strike or dismiss is an interlocutory order, which is not a final disposition of the proceeding sufficient to confer jurisdiction on an appellate court. (Rosinia v. Gusmano (1980), 90 Ill. App. 3d 882.) Likewise, an order of voluntary dismissal is not a final disposition because the plaintiff is permitted to refile the action within one year. Ill. Rev. Stat. 1981, ch. 110, par. 13 — 217.

Although the plaintiff has not filed a motion to dismiss, an appellate court is without jurisdiction to review nonfinal orders. Therefore, we will dismiss the defendants’ appeal on our own motion.

It is to be noted, however, that the author of this opinion and Justice Scott, who concurs therewith, both also concur with the views expressed by Justice Stouder in the special concurring opinion.

Appeal dismissed.

SCOTT, J., concurs.