APPEAL from the Circuit Court of Winnebago County; the Hon.
ALBERT S. O'SULLIVAN, Judge, presiding.
MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT:
On May 30, 1966, plaintiff Roland H. Bates, visited the premises of the Wagon Wheel Lodge Hotel in Rockton, Illinois, for the purpose of renting a horse at the hotel stables. Plaintiff's ride was abruptly interrupted when he fell from the saddle and sustained certain injuries to his person. Feeling the Wagon Wheel Lodge Hotel was responsible for his injuries, plaintiff commenced legal action against the hotel on April 24, 1968, in the circuit court of Winnebago County, Rockford, Illinois. This action was commenced thirty-six days before the running of the two-year statute of limitations established by Ill. Rev. Stat. (1969), ch. 83, par. 15. Plaintiff named as defendant, Wagon Wheel Lodge Hotel, and summons was issued and served upon Maurice F. Hannon as its agent.
When no response or pleading was filed by the defendant, plaintiff obtained a default judgment on January 24, 1969. On that same day, plaintiff's attorney was contacted by Robert K. Clark, attorney for the Wagon Wheel Country Club, Inc., and Wagon Wheel Enterprises, Inc., and informed that the wrong defendant had been sued. Subsequently, notices were sent to Attorney Clark and Agent Hannon notifying them of the proveup of damages for the default judgment. During the following months numerous motions and notices were filed with the trial court which are of no significance for purposes of this appeal.
On May 8, 1969, defendants Wagon Wheel Country Club, Inc., and Wagon Wheel Enterprises, Inc., entered a Special and Limited Appearance and motioned the trial court to enter an order finding that it had no jurisdiction over defendants and holding void any judgment rendered against them. On May 15, 1969, a hearing was had on defendants' Special and Limited Appearance, and at that time, plaintiff sought unsuccessfully to strike the defendants' motion. At the hearing, it was established that no such entity as Wagon Wheel Lodge Hotel existed, but that in fact the real estate upon which the stables were located was owned by Wagon Wheel Enterprises, Inc., and that the stables were leased by Wagon Wheel Country Club, Inc., and operated by Henry G. Wilson, d/b/a Wagon Wheel Stables. Defendants' Special and Limited Appearance contesting jurisdiction was subsequently granted on September 25, 1969. Plaintiff then, on October 7, 1969, moved the trial court for leave to file an amended complaint. This leave was granted and plaintiff filed his amended complaint against the new defendants, Wagon Wheel Country Club, Inc., and Wagon Wheel Enterprises, Inc., and served Walter Williamson, president of the defendant corporations. On October 10, 1969, the new defendants filed their motion to contest jurisdiction, followed on November 4, 1969, with a motion to dismiss the amended complaint on the grounds that the two-year statute of limitations had run. On February 5, 1970, defendants' motion to dismiss the plaintiff's case was granted by the trial court and the plaintiff duly perfected its appeal to this court.
At the outset, this court wishes to state that, contrary to defendants' urging, we are satisfied that plaintiff's appeal is properly before this court and that plaintiff's notice of appeal sufficiently sets forth what judgment is being appealed, what the issues are, and what relief is sought. A ruling of this court, on the February 5th decision, will determine the issues raised in the lower court and the correctness of that decision.
Plaintiff's appeal raises the question of whether, and under what circumstances, may one defendant be effectively substituted as a party, after the statute of limitations has run, for another defendant originally named. This question has been somewhat clarified by the enactment by the Illinois Legislature of ch. 110, par. 46(4) of the Ill. Rev. Stat. (1969). This section reads as follows:
"(4) A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (a) the time prescribed or limited had not expired when the original action was commenced; (b) failure to join the person as a defendant was inadvertent; (c) service of summons was in fact had upon the person, his agent or partner, as the nature of the defendant made appropriate, even though he was served in the wrong capacity or as agent of another, or upon a trustee who has title to but no power of management or control over real property constituting a trust of which the person is a beneficiary; (d) the person, within the time that the action might have been brought or the right asserted against him, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him; and (e) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery when the condition precedent has in fact been performed, and even though the person was not named originally as a defendant. For the purpose of preserving the cause of action under those conditions, an amendment adding the person as a defendant relates back to the date of the filing of the original pleading so amended."
If the five requirements of the above statute have been met by plaintiff, then his amendment and effort to add two new defendants after the running of the statute of limitations should have been permitted by the trial court. This court is of the opinion that the five requirements of Ill. Rev. Stat. (1969), ch. 110, par. 46(4) have been met by the plaintiff.
First of all, the time for filing plaintiff's personal injury case had not expired when the original action was commenced. The action occurred on May 30, 1966, and the plaintiff commenced his suit on April 24, 1968.
Second, the plaintiff's failure to join the defendants was inadvertent. There is inadvertence if the plaintiff was "not turning the mind to a matter; heedless; negligent; inattentive;" in failing to join the new defendants originally, but acted to join the new defendants within a reasonable period of time after receiving notice of their existence. (Silver v. Lee Shell Equipment Corp., 31 Ill. App.2d 266, 269, 175 N.E.2d 287 (1961); Fields v. 6125 Indiana Ave. Apts., Inc., 47 Ill. App.2d 55, 58, 196 N.E.2d 485 (1964).) This court believes the defendants' contention is, in essence, that even though the plaintiff may have been heedless, negligent, inattentive, etc., in originally suing the improper defendant, he was, nevertheless, informed of his mistake on January 24, 1969, and still failed to correct his pleading until October 10, 1969, approximately eight and one-half months later. According to the defendants, this lapse of time was not reasonable. What defendants overlook or ignore, and what the Fields case was so careful to point out, is the importance of plaintiff being informed of the true defendants before the statute of limitations runs and failing to correct the mistake before such running. In the Fields case, the plaintiff learned of the correct defendants eight months before the statute of limitations had run, but did not move to have them added until after the statute had run. The plaintiff in that case could have and should have corrected the party defendant before the running of the statute.
Here, plaintiff did not discover who the real defendants should have been until May 15, 1969, at the hearing on the defendants' Special and Limited Appearance to contest jurisdiction. By this time the statute of limitations had run by almost one year. Upon learning that Wagon Wheel Country Club, Inc., and Wagon Wheel Enterprises, Inc., should have been the proper defendants and after defendants' Special and Limited Appearance contesting jurisdiction was granted on September 25, 1969, plaintiff took action to join them within two weeks. This court finds nothing unreasonable in the two-week delay in view of the aforementioned facts. Had the plaintiff been given the information of the true defendants before the statute of limitations had run and had not acted to join them before the running, then there would be a lack of inadvertence. Fields v. 6125 Indiana Ave. Apts., Inc., supra; Gonzalez v. Seiff (1967), 90 Ill. App.2d 127, 130, 234 N.E.2d 336; Cox v. Shupe (1963), 41 Ill. App.2d 413, 418, 191 N.E.2d 250; Robinson v. Chicago Nat. Bank (1961), 32 Ill. App.2d 55, 60, 61, 176 N.E.2d 659; Solone v. Reck (1965), 55 Ill. App.2d 282, 285, 204 N.E.2d 614.
Third, service of summons was in fact had upon the agent of defendants, Wagon Wheel Country Club, Inc., and Wagon Wheel Enterprises, Inc., even though mistakenly served as the agent of the non-existing corporate entity, Wagon Wheel Lodge Hotel. It was sufficiently established before the trial court that Maurice F. Hannon was the agent, as well as secretary, of the defendant corporations.
Fourth, the defendants, Wagon Wheel Country Club, Inc., and Wagon Wheel Enterprises, Inc., had knowledge before the statute of limitations had run that this case was pending and would involve them. Service was obtained upon their agent and secretary, Maurice F. Hannon, on April 24, 1968, and examination of the complaint clearly reflects what the cause of action concerned and whom plaintiff was attempting to sue and serve. Maurice F. Hannon's knowledge of the lawsuit, as agent, is imputed to the defendant corporations. The defendants had thirty-six days in which to notify plaintiff of his mistake, either through a pleading or otherwise. They chose not to do so for reasons which are perhaps understandable, but which cannot be condoned in this situation.
Fifth and finally, there is no question that the cause of action in the original complaint and the amended complaint remains identical. The cause of action, the ...