Appeal from the Circuit Court of Tazewell County; the Hon.
John A. Gorman, Judge, presiding.
JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 26, 1984.
The plaintiff, Pamela Hatcher, appeals the granting of defendant Danelle Kentner's motion for summary judgment by the circuit court of Tazewell County.
On January 10, 1980, plaintiff was involved in an automobile accident in Pekin, Illinois, in which her vehicle was struck by another vehicle allegedly being driven by one Danelle Kentner. Earline Kentner was the actual operator of the vehicle which collided with plaintiff's vehicle. Daniel Kentner, Earline's husband, was the owner of the vehicle. An investigating police officer prepared a police report on the day of the accident which correctly identified the operators of the respective vehicles.
On January 8, 1982, two days before the statutory limitations period expired, plaintiff filed her complaint for damages for personal injuries. The complaint erroneously named Danelle Kentner instead of Earline as the defendant and alleged that she was the operator of the vehicle which struck plaintiff's automobile. Summons was issued to the sheriff of Tazewell County with a request that it be served together with a copy of the complaint upon Danelle Kentner at 537-C Monson, East Peoria, Illinois. The sheriff received the summons from the office of the circuit clerk on the day after the two-year statute of limitations had expired. The sheriff attempted to locate Danelle Kentner at the address given but was unable to do so. The summons was returned with the notation that the defendant, Danelle Kentner, was "not found" in the county. The address given was the address of Daniel and Earline Kentner. There are no facts of record indicating that service of process was obtained upon anyone in this action.
On February 9, 1982, an answer was filed to plaintiff's complaint which also bore the name of Danelle Kentner as defendant. The defendant's answer admitted the allegations contained in plaintiff's complaint with regard to the identity of the owner and operator of the vehicle on the date and place of the accident as being Danelle Kentner. Defendant also filed a request to produce and interrogatories bearing the female name of Danelle Kentner.
When the error was discovered, plaintiff filed a motion for leave to amend her complaint to change the defendant's name from Danelle to Earline Kentner on March 25, 1982. On July 26, 1982, the court denied plaintiff's motion. Defendant was permitted to amend her answer by interlineation so as to deny that portion of plaintiff's complaint which alleged that Danelle Kentner was the owner and operator of the vehicle in question.
On January 7, 1983, the court granted defendant's motion for summary judgment from which this appeal is taken.
Plaintiff contends that it was error to deny her motion to amend since the error was allegedly only a misnomer. Additionally, plaintiff contends defendant should be estopped from denying it was a misnomer since she participated in the error herself. Plaintiff further contends that even if the error was not a misnomer, it was a case of mistaken identity and she should have been allowed to amend her complaint accordingly.
Our initial inquiry concerns the issue of whether plaintiff sued the wrong party or sued the proper party under the wrong name. We disagree with the defendant that the original designation in the complaint clearly indicates that plaintiff brought the action against Daniel Kentner, who owned the vehicle, as opposed to Earline Kentner, who operated it at the time of the collision. Defendant's allegation is maligned by the fact that plaintiff's complaint repeatedly refers to the defendant in the female gender. An additional factor in plaintiff's favor is that she had the correct address for Earline Kentner despite the wrong first name. A third factor in plaintiff's favor is that the defendant participated, either intentionally or negligently, in the error by filing a responsive pleading which failed to take issue with the alleged identity of the defendant.
The determination of whether the plaintiff sued the wrong party or whether she merely sued the proper party under the wrong name (misnomer) is crucial because the result will differ depending upon which statute is applied.
If for instance the mistake was only a misnomer, then section 2-401(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-401(b)) provides:
"(b) Misnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires."
If, on the other hand, the determination is made that the plaintiff sued the wrong party, as the circuit court held and which defendant urges us to ...