{
  "id": 5141033,
  "name": "Josephine Daviditis et al., Plaintiffs-Appellants, v. The National Bank of Mattoon, Defendant-Appellee",
  "name_abbreviation": "Daviditis v. National Bank of Mattoon",
  "decision_date": "1955-05-16",
  "docket_number": "Gen. No. 9,993",
  "first_page": "286",
  "last_page": "289",
  "citations": [
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      "cite": "6 Ill. App. 2d 286"
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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    {
      "cite": "393 Ill. 211",
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  "last_updated": "2023-07-14T20:47:48.451913+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Josephine Daviditis et al., Plaintiffs-Appellants, v. The National Bank of Mattoon, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "MR. PRESIDING JUSTICE CARROLL\ndelivered the opinion of the court.\nPlaintiffs appeal from a judgment of the circuit court of Coles county allowing defendant\u2019s motion to dismiss the complaint and for judgment in its favor.\nThe complaint under which damages are sought for certain alleged acts and omissions of defendant while it was serving as administrator of the estate of William Daviditis, deceased, was filed December 29, 1953. On January 18, 1954, defendant filed its motion to dismiss the complaint and for judgment in bar of the action. The motion, supported by affidavit, in addition to other grounds, set forth that plaintiffs\u2019 cause of action was barred by prior judgments of the circuit court of Coles county, Illinois, and the county court of Coles county, Illinois. On April 10, 1954, plaintiffs served notice upon defendant that its motion would be heard on May 27, 1954. On June 15, 1954, the court heard the motion and made its ruling thereon. Plaintiffs thereupon moved the court for leave to file an amended complaint, which motion was denied.\nReversal of the judgment is urged solely upon the ground that the court below erred in denying plaintiffs\u2019 motion for leave to file an amended complaint.\nThe record indicates plaintiffs filed no counter-affidavits nor in any manner challenged the sufficiency of defendant\u2019s motion. It must be assumed, therefore, that plaintiffs were unable to present affidavits or other proof denying the facts alleged or establish facts obviating the objections raised by defendant\u2019s motion. Section 48 of the Civil Practice Act [Ill. Rev. Stats. 1953, ch. 110, \u00a7 172; Jones Ill. Stats. Ann. 104.048] provides the method by which the plaintiffs could have denied the fact allegations of defendant\u2019s motion. The defendant, by its motion, raised one of the nine defenses specified in the above section of the Civil Practice Act, namely, that the cause of action is barred by a prior judgment, and supported the allegations of the motion by affidavit. Since plaintiffs did not file counteraffidavits the facts alleged in defendant\u2019s affidavits were properly taken as true. The trial court therefore correctly sustained defendant\u2019s motion and disposed of the case on the defense of a former judgment. Leitch v. Hine, 393 Ill. 211. Disposition of the case was made by entering judgment for the defendant.\nIt is plaintiffs\u2019 contention that they did not have an opportunity to properly prepare their case for presentation to the court. This contention apparently is the basis upon which it is claimed the trial court erred in denying leave to file an amended complaint. Such contention must of necessity refer to proceedings had on plaintiffs\u2019 motion as that was the only matter before the court in connection with the case which would require preparation. The case was not on trial nor had it been set for trial. \u2022 The record indicates defendant\u2019s motion was called up for hearing at the instance of plaintiff, but makes no reference to any request by plaintiffs for a continuance.\nObviously, plaintiffs\u2019 argument with reference to time for preparation of the case is in no manner related to the question whether the trial court erred in denying their motion for leave to file an amended complaint.\nPlaintiffs were not, as a matter of right, entitled to file an amended complaint. The trial court held the complaint defective on the ground that the claim for damages therein advanced by plaintiffs had been previously adjudicated - by both the .county and circuit courts of Coles county. The facts constituting the defense of former adjudication were presented to the court by the motion and affidavit of the defendant.\nPlaintiffs, in effect, by failing to controvert such facts, confessed the truth thereof. Plaintiffs in no way take exception to the ruling of the court on defendant\u2019s motion to dismiss. The trial court having held plaintiffs\u2019 action to be barred by application of the principle of res jndicata, such bar extended to all grounds of recovery or defense involved in the dispute between the parties which might have been raised. Chicago & W. I. R. Co. v. Alquist, 415 Ill. 537; People v. Kidd, 398 Ill. 405.\nThe record does not show the proposed amended complaint was submitted to the court nor does it indicate how the court might determine the sufficiency thereof. There would be no reason for the court\u2019s conclusion that an amended complaint would not be vulnerable to a motion to dismiss.\nThere was no abuse of discretion by the trial court in denying plaintiffs\u2019 motion for leave to file an amended complaint. Dean v. Kirkland, 301 Ill. App. 495; Aaron v. Dausch, 313 Ill. App. 524.\nThe circuit court did not err in dismissing the complaint and entering judgment for defendant, and its action is affirmed.\nAffirmed.",
        "type": "majority",
        "author": "MR. PRESIDING JUSTICE CARROLL"
      }
    ],
    "attorneys": [
      "Sidney N. Ware, of Elmhurst, for appellants.",
      "Dilsaver & Gilkerson, of Mattoon, for appellee."
    ],
    "corrections": "",
    "head_matter": "Josephine Daviditis et al., Plaintiffs-Appellants, v. The National Bank of Mattoon, Defendant-Appellee.\nGen. No. 9,993.\nThird District.\nMay 16, 1955.\nRehearing denied Jnly 6, 1955.\nReleased for publication Jnly 6, 1955.\nSidney N. Ware, of Elmhurst, for appellants.\nDilsaver & Gilkerson, of Mattoon, for appellee."
  },
  "file_name": "0286-01",
  "first_page_order": 300,
  "last_page_order": 303
}