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07/31/87 Gerald Hoving, v. Barbara J. Davies

July 31, 1987

GERALD HOVING, PLAINTIFF-APPELLANT

v.

BARBARA J. DAVIES, INDIV. AND D/B/A VILLA MARIE EAST, ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

512 N.E.2d 729, 159 Ill. App. 3d 106, 111 Ill. Dec. 340 1987.IL.1098

Appeal from the Circuit Court of Cook County; the Hon. Lester D. Foreman, Judge, presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. LORENZ and MURRAY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

Plaintiff, Gerald Hoving, appeals from an order dismissing his dramshop action (Ill. Rev. Stat. 1985, ch. 43, par. 135) against the defendant, John A. Davies, Inc., on the ground that the action was barred by the statute of limitations. (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(5).) The plaintiff asserts that the misnomer section 2-401 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-401) is applicable and precludes a dismissal of his action. Plaintiff alternatively argues that if section 2-401 is inapplicable to the facts in the case at bar, plaintiff has satisfied the five requirements set forth in section 2-616(d) of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-616(d)) for adding parties to an action after the expiration of the statute of limitations.

Plaintiff's action allegedly arose out of an incident which occurred on September 18, 1978, in which plaintiff suffered injuries as a result of an altercation with Joseph Felkins and James Felkins in the Villa Marie East, a restaurant and lounge located in Hillside, Illinois. On December 4, 1978, plaintiff sent an investigative letter to the liquor commissioner of the village of Hillside to obtain the names of the owners of the Villa Marie East property and the names of the liquor licensees for the Villa Marie East restaurant and lounge. The responding letter of the village of Hillside's liquor commissioner dated December 8, 1978, stated that the owners of the business and property were Barbara J. Davies and John Davies and that a liquor license had been issued to them. Plaintiff filed his dramshop action on August 20, 1979, against Barbara Davies and John Davies, individually and doing business as the Villa Marie East. Plaintiff obtained service on John Davies at his residence on October 15, 1979. John Davies died six months later, on April 8, 1980.

On May 12, 1980, a month after John Davies' death but seven months after he was served with summons, a default judgment was entered against both John Davies and Barbara Davies. On July 24, 1980, Barbara Davies filed a motion to vacate the judgment entered against her and to quash the service of summons. In her motion, she alleged that she was divorced in October 1979 from John Davies and that on October 15, 1979, she did not live at the address where the summons had been served on John Davies. The trial court granted Barbara Davies' motion to vacate and quash service of summons.

Subsequently, plaintiff obtained Barbara Davies' address and she was served an alias summons on December 29, 1980. Barbara Davies filed a motion to dismiss plaintiff's complaint due to plaintiff's lack of diligence in obtaining service on her. The trial court denied Barbara Davies' motion to dismiss on March 22, 1983.

On June 22, 1983, Barbara filed a motion for summary judgment in which she alleged that on the date of the incident, September 18, 1978, she was not the owner, operator or manager of the Villa Marie East. In her deposition, taken July 6, 1983, Barbara stated that John A. Davies, Inc., was incorporated in August 1974 for the purpose of owning and operating the Villa Marie East. John A. Davies, Inc., had two corporate officers, John A. Davies, president, and his wife Barbara J. Davies, secretary/treasurer. Following the death of John Davies on April 8, 1980, Barbara Davies assumed the presidency and her daughter, Judy Hejnar, became the secretary/treasurer of John A. Davies, Inc.

On September 8, 1983, the court granted Barbara's motion for summary judgment and on that same day granted plaintiff leave to amend the complaint to add John A. Davies, Inc., as a defendant. On September 26, 1983, summons was served on Barbara J. Davies as the registered agent of John A. Davies, Inc.

Defendant John A. Davies, Inc., then filed a motion to dismiss in which it asserted that plaintiff's action was barred by the statute of limitations. The trial court granted defendant's dismissal motion. Plaintiff appeals.

On appeal, plaintiff contends that his action should not be dismissed because defendant's name was properly corrected as a misnomer. Alternatively, plaintiff contends that he satisfied the five requirements set forth in section 2 -- 616(d) for the addition of ...


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