APPEAL from the Circuit Court of Du Page County; the Hon.
GORDON MOFFETT, Judge, presiding.
MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:
The trial court granted the defendant's motion to dismiss counts I and II of the plaintiff's complaint. The plaintiff appeals.
The complaint alleged that the State Bank of Lombard, trustee under trust No. 301, recovered a judgment against Sarsfield Associates, S.C., an Illinois corporation, for the sum of $4,650.86 and the costs of suit, in the circuit court of Du Page County. The judgment was the result of a suit filed by the State Bank of Lombard (hereafter the plaintiff) on March 31, 1975, against Sarsfield Associates, S.C. The registered agent of the corporation was served with summons, an appearance was filed on behalf of the corporation by its attorneys on May 15, 1975, and an answer to the complaint was filed on June 2, 1975. However, no one appeared on behalf of the corporation on the day of trial, and the judgment was entered in favor of the plaintiff and against Sarsfield Associates, S.C., on July 17, 1975.
It appears that on May 9, 1975, Sarsfield Associates, S.C., by its sole director, vice president and secretary, Carlos Segovia, filed with the office of the Secretary of State of Illinois, a statement of intent to dissolve by voluntary action of the corporation, pursuant to sections 76 and 77 of the Business Corporation Act (Ill. Rev. Stat. 1973, ch. 32, pars. 157.76 and 157.77). Further that Segovia (hereafter defendant), on behalf of the corporation filed with the Secretary of State's office articles of dissolution pursuant to sections 80 and 81 of the Business Corporation Act (Ill. Rev. Stat. 1973, ch. 32, pars. 157.80 and 157.81). Sarsfield Associates, S.C., was dissolved on June 19, 1975.
The present suit was filed on December 22, 1975. Defendant was served with summons and filed an appearance and a motion to dismiss counts I and II of the plaintiff's complaint. Count I was based on section 42.6 of the Business Corporation Act (Ill. Rev. Stat. 1973, ch. 32, par. 157.42-6) which provides:
"The directors of a corporation which fails to mail to a known creditor of such corporation, as provided in this Act, a notice of the filing by the Secretary of State of a statement of intent of such corporation to dissolve, shall be jointly and severally liable to such creditor for all loss and damage occasioned thereby." (Emphasis added.)
The plaintiff alleges in the complaint that it is a creditor, that it received no notification as required by the statute cited above and claims as damages the sum of $4532.15 (the amount remaining due on the July 17, 1975, judgment) plus the costs of said suit and the legal interest thereon from the date of judgment.
Count II of the complaint alleged fraudulent representation on the part of the defendant in that in the articles of dissolution filed by the defendant he stated under oath that all debts, obligations and liabilities of the corporation were paid and discharged or that adequate provision had been made for them. Plaintiff alleges its damages are the remaining amount of its judgment against Sarsfield Associates, S.C., which it has been unable to collect due to the fraudulent misrepresentation on the part of the defendant.
In an affidavit in support of his motion to dismiss, the defendant stated that only $675.96 was available at the time Sarsfield Associates, S.C., was liquidated, to satisfy liabilities in excess of $6000. Of the $675.96 available, approximately $230 was used to partially satisfy the debt owed to the plaintiff.
Following arguments on defendant's motion to dismiss counts I and II and on plaintiff's motion to strike defendant's motion to dismiss the following colloquy then occurred:
"THE COURT: The motion of the plaintiff to strike the defendant's motion to
MR. SIMON [counsel for the defendant]: Dismiss.
THE COURT: [continuing] to dismiss the complaint is denied and the motion of the defendant to dismiss the complaint is granted and if the plaintiff wants leave to file an amended complaint, which will set forth ...