APPEAL from the Circuit Court of Cook County; the Hon. PAUL F.
ELWARD, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Pursuant to Supreme Court Rule 304(a) (Ill. Rev. Stat. 1977, ch. 110A, par. 304(a)), plaintiff, Elizabeth Griffith, appeals an order of the circuit court of Cook County dismissing her personal injury action against defendant, Andrea Pincham. The action was dismissed upon plaintiff's failure to join the defendant until after the limitations period had expired.
The sole issue on appeal is whether the exception to the statute of limitations provided for in section 46(4) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 46(4)) applies in this case.
On December 23, 1974, plaintiff was involved in an automobile collision with two other vehicles, one driven by defendant Andrea Pincham, and the other driven by co-defendant Richard H. Garner, who takes no part in this appeal. The police traffic accident report identified one of the parties involved as "Sandy" Pincham.
On November 8, 1976, plaintiff filed a personal injury complaint naming Richard H. Garner, Eugene Pincham, and "Sherry" Pincham as defendants. On the same date, summons was issued directing the sheriff to serve "Sherry" Pincham and Eugene Pincham at the same address. The sheriff's return of service indicated that on November 11, 1976, "Sherry" Pincham, noted on the return slip as a black female approximately 40 years old, was personally served, and that Eugene Pincham was served by abode service with the notation that a copy of the summons was left with his wife, a black female approximately 40 years old, who refused to identify herself.
On December 8, 1976, Alzata Pincham (Eugene Pincham's wife) filed a special and limited appearance and motion to quash the return of service on her, shown on the summons as service on Sherry Pincham, stating that she had never been referred to as "Sherry" Pincham; that no one by that name resided at her home; and that after receiving the summons and complaint, she realized it was not meant for her.
On this same date Eugene Pincham filed his motion to dismiss the complaint as to him, *fn1 stating that the complaint alleged Sherry Pincham negligently operated a motor vehicle as his agent and servant, that he did not know a Sherry Pincham, nor did he allow anyone by that name to operate a motor vehicle as his agent and servant on December 23, 1974.
On January 13, 1977, plaintiff filed a request to Eugene Pincham to admit that on December 23, 1974, he had a daughter named either "Sandy" or "Sherry" Pincham who was a member of his household. Eugene Pincham filed objections to this request on the basis that it sought information which was irrelevant and immaterial.
By court order of March 4, 1977, and over defendant Eugene Pincham's objection, plaintiff was allowed to file instanter an amended complaint naming Andrea Pincham, a/k/a Sherry Pincham, a/k/a Sandy Pincham as an additional party defendant with summons to issue against her instanter.
In his deposition taken on April 8, 1977, Eugene Pincham stated that he was a judge in the circuit court of Cook County, criminal division; that his wife's name was Alzata; that he had a daughter named Andrea Michelle who at the time of the deposition was 23 years old and a medical student living at the University of Illinois Medical School complex in Chicago; that his daughter lived in a building located on the southwest corner of Polk and Wolcott Streets, but he could not remember the address of the building; that she began living at the medical complex in August of 1976; that his daughter's nickname was Sandy and that she never had been called Sherry; that on December 23, 1974, his daughter was a member of his household and told him about an automobile accident in which she was involved on that day; and that his wife was probably present during this conversation.
After several unsuccessful attempts, Andrea Pincham was personally served with summons by a special process server on July 5, 1977.
Thereafter, Andrea Pincham filed a motion to dismiss, urging that the action against her was barred by the statute of limitations. Both parties submitted memoranda and affidavits to support their positions.
Plaintiff filed an affidavit stating that at the time of the accident, defendant introduced herself as "Sherry" Pincham, and as a consequence plaintiff was under the belief that the true name of the defendant was "Sherry" Pincham.
Defendant also filed an affidavit stating that she had never been known as "Sherry" nor did she ever inform anyone including the plaintiff that her name was "Sherry"; and that prior to December 23, 1976, she was not served with ...