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Evans v. Graber

OPINION FILED JUNE 13, 1983.

DAN EVANS, PLAINTIFF-APPELLANT,

v.

GRABER, INC., ET AL. DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Moultrie County; the Hon. Worthy B. Kranz, Judge, presiding.

JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 8, 1983.

On motion of defendant Graber Construction Company, the circuit court of Moultrie County dismissed plaintiff's amended complaint on the ground that it had not been made a party defendant within the period of limitations provided by law. From this order, plaintiff has appealed.

The question presented is whether plaintiff's failure to join Graber Construction Company as a defendant within the statutory time period was inadvertent under section 2-616(d)(2) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-616(d)(2)), formerly section 46(4)(b) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 46(4)(b)). We reverse and remand.

Toward the end of May 1979, plaintiff Dan Evans was repairing the roof of the First Church of Christ in Sullivan, Illinois. He sustained injuries when he fell from the roof. On March 23, 1981, he filed suit in Madison County against Graber, Inc., pleading common law negligence and a breach of the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69). Sam Graber was served on April 10, 1981.

On May 11, 1981, defendant Graber, Inc., moved to transfer venue. The motion was accompanied by an affidavit of Sam Graber, president of Graber, Inc., which stated that the company was in the business of retail building supplies and denied that it had sufficient business contacts in Madison County to place venue there.

Toward the end of May 1981, the statute of limitations ran on the action.

On May 29, 1981, plaintiff was given leave to submit interrogatories on the issue of venue, the court reserved ruling on the venue motion until the interrogatories were answered, and defendant was given leave to refrain from filing responsive pleadings to the complaint pending a ruling on the venue motion.

Defendant Graber, Inc., answered the interrogatories on June 26, 1981. Defendant did not state that it was the wrong defendant and did not name the proper defendant. Asked for the names of all persons having knowledge of facts pertaining to the accident, the defendant did not name Graber Construction Company. Asked whether the defendant was correctly named in the lawsuit and, if not, asked to name the correct defendant, defendant Graber, Inc., answered: "There is a corporation named Graber, Inc. Whether the above is correctly named as a defendant in this law suit is a matter for the Plaintiff's determination."

On November 24, 1981, the motion to transfer venue was allowed and the case was transferred to Moultrie County.

On December 23, 1981, defendant Graber, Inc., filed a motion to dismiss accompanied by an affidavit by Sam Graber indicating that it was not the proper defendant. The proper defendant was not named. On December 31, 1981, plaintiff moved to hold defendant's motion in abeyance, stating that plaintiff did not have sufficient information upon which to reply to Graber's affidavit, and filed a request for production of documents and interrogatories.

In January 1982, the plaintiff sought to depose Sam Graber. Defendant Graber, Inc., opposed production prior to a ruling on the motion to dismiss.

In February 1982, defendant Graber, Inc., answered interrogatories and again declined to name the proper defendant:

"8. Is the defendant correctly named in the style of the lawsuit? If not, then please inform us as to whatever misnomer or other discovery is involved including the status of each defendant as a corporation, ...


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