CIVIL PROCEDURE-JUDGMENTS-RES JUDICATA EFFECT OF DISMISSAL WITH PREJUDICE

Plaintiff brought an action in the circuit court against Crane for breach of an alleged trust agreement. When Crane died, his estate, which was substituted as defendant, moved to dismiss the action, alleging that plaintiff's cause of action was barred by laches and by a previous divorce settlement. Plaintiff having failed to file counter affidavits, the court dismissed the complaint and allowed plaintiff twenty days to file an amended complaint. When he failed to do so, the court dismissed the action "with prejudice." Plaintiff's later claim, filed in the probate court, but based on the same trust agreement, was allowed.

On trial de novo in the circuit court, the probate court was reversed on the ground that the dismissal of the former action was res judicata. The court refused to allow plaintiff to enter part of the transcript of testimony in the first case or to allow the judge who entered the order to testify to the effect that the dismissal was ordered because of plaintiff's failure to obtain counsel and prosecute her claim. On appeal, held, affirmed. An order dismissing with prejudice is conclusive and establishes that the court has decided the defenses offered are meritorious.

In re Crane's Estate, (Ill. App. 1951) 99 N.E. (2d) 204.