Plaintiff had refiled his complaint (a consolidation of a will contest and a multicount complaint alleging wrongful conduct by Plaintiff's sister as to their mother's assets) pursuant to section 13-217 of Code of Civil Procedure, one day prior to moving to withdraw a previously filed timely motion to vacate a dismissal for want of prosecution of his original complaint. Under the circumstances, in the absence of a statute or case law prohibiting the refiling and the lack of prejudice to Defendants, court erred in dismissing the refiled complaint. Section 13-217 does not prohibit refiling before a motion to vacate has been decided, and the statute's purpose and principles of judicial economy weigh in favor of allowing the refiling. (HUTCHINSON, concurring; McLAREN, specially concurring.)
Illinois Appellate Court
Civil Court
Dismissal