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March 22, 1996


Appeal from the Circuit Court of Madison County. No. 94-L-857. Honorable P. J. O'Neill, Judge, presiding.

The Honorable Justice Chapman delivered the opinion of the court: Kuehn, J., and Maag, J., concur.

The opinion of the court was delivered by: Chapman

JUSTICE CHAPMAN delivered the opinion of the court:

Sexton Daugherty was involved in an automobile accident on August 26, 1992, and died before August 26, 1994. Russell and Martha Gaddy filed a petition to appoint the public administrator of Madison County, Eleanor Schulte, as special administrator of the estate of Sexton Daugherty. By order filed August 26, 1994, but dated August 25, 1994, Eleanor Schulte was appointed public administrator of Daugherty's estate for the purpose of defending a personal injury action brought by Russell and Martha Gaddy. On August 26, 1994, plaintiffs filed this lawsuit and named Eleanor Schulte as defendant. In an order dated January 3, 1995, the court pointed out that the term "public administrator" used in the August 25, 1994, order was a misnomer, and that Eleanor Schulte's appointment was that of special administrator under section 2-1008 of the Code of Civil Procedure (735 ILCS 5/2-1008 (West 1994)). Schulte appeals from the order of appointment and contends that the court was without authority to appoint her as special or public administrator. We affirm.

The issue on review is whether the circuit court properly appointed Eleanor Schulte special administrator pursuant to section 2-1008.

Schulte argues that the procedures outlined in the Probate Act of 1975 (Probate Act) (755 ILCS 5/1-1 et seq. (West 1994)) for the appointment of a public administrator were not followed in this case and, therefore, the appointment of Schulte as special administrator was improper and is void. In particular, Schulte contends that the Gaddys did not: (1) petition the court to issue letters of administration (755 ILCS 5/9-4 (West 1994)); (2) mail or otherwise give notice to those persons entitled to administer or to nominate an administrator (755 ILCS 5/9-5 (West 1994)); or (3) notify the heirs of the order to issue letters of administration (755 ILCS 5/9-5 (West 1994)).

Although plaintiffs did not follow the Probate Act, there is nothing in that act nor is there an Illinois case which states that what the plaintiffs did in this case was wrong. One may argue that by circumventing the Probate Act the plaintiffs may have effectively denied would-be administrators under the Probate Act their opportunity to be appointed. Although at first glance this appears true, administrators appointed under the Probate Act may petition the court to be substituted for special administrators appointed under section 2-1008 (see 735 ILCS 5/2-1008(b) (West 1994)). We also note, as a practical matter, that in cases such as the one at bar where a personal injury action is filed against the deceased defendant, family members may prefer not to be named as administrators, as the matter often does not affect the decedent's estate per se, but rather the decedent's insurance policy. If, however, family members do wish to serve as administrators, they can be substituted. As a practical matter the appointment of special administrators outside the strictures of the Probate Act eliminates an undue burden on the probate court and the parties. Given the policy reasons and notwithstanding the absence of any statutory prohibition on appointing administrators outside the Probate Act, the defendant contends that the court erred in appointing a special administrator pursuant to section 2-1008.

Section 2-1008 of the Code of Civil Procedure provides in pertinent part:

"If a party to an action dies and the action is one which survives, the proper party or parties may be substituted by order of court upon motion. ***

If the death of a party to a personal action is suggested of record and no petition for letters of office for his or her estate has been filed, the court, *** without opening of an estate, may appoint a special administrator for the deceased party for the purpose of prosecuting or defending the action." 735 ILCS 2-1008(b) (West 1994).

Schulte cites Vaughn v. Speaker, 126 Ill. 2d 150, 533 N.E.2d 885, 127 Ill. Dec. 803 (1988), in support of her argument that there must be a pending cause of action at the time of defendant's death in order to appoint an administrator under section 2-1008(b).

In Vaughn plaintiff filed her original complaint against a deceased defendant within the statute of limitations. After learning that defendant was deceased, plaintiff filed a second amended complaint with the same allegations but naming as defendants the coexecutors of the estate. Between the filing of the original complaint and the filing of the amended complaint, the statute of limitations expired. The supreme court held that section 2-1008(b) was not meant to encompass such a situation. The court held that the original complaint naming a deceased defendant as a party was a nullity, and that section 2-1008(b) could not be invoked to bring the amended complaint within the statute of limitations under the relation back doctrine. Vaughn, 126 Ill. 2d at 158, 533 N.E.2d at 888. Vaughn is distinguishable from this case because plaintiffs' complaint was timely filed within the statute of limitations, and it named the administrator and not the decedent as defendant. The relation back doctrine is not at issue in this case.

Two additional cases cited by Schulte in support of her argument, Greene v. Helis, 252 Ill. App. 3d 957, 625 N.E.2d 162, 192 Ill. Dec. 202 (1993), and Knowles v. Mid-West Automation Systems, Inc., 211 Ill. App. 3d 682, 570 N.E.2d 484, 156 Ill. Dec. 8 (1991), are also distinguishable because both dealt with amended complaints, filed after expiration of the statute of limitations, which named a special administrator and attempted to relate back to timely filed original complaints which named the decedent as a defendant. It is well-settled that a complaint filed against a dead person is a nullity and does not invoke the jurisdiction of the circuit court. Bricker v. Borah, 127 Ill. App. 3d 722, 724, 469 N.E.2d 241, 242, 82 Ill. Dec. 707 (1984). Here we are not concerned with the relation back doctrine, because plaintiffs filed the petition for appointment of Schulte within the statute of limitations and before they filed a civil complaint.

Plaintiffs rely on Lindsey v. Special Administrator of Estate of Phillips, 219 Ill. App. 3d 372, 579 N.E.2d 445, 161 Ill. Dec. 897 (1991), in support of their argument. In Lindsey, a complaint was filed on April 11, 1990, alleging that on April 14, 1988, the decedent was negligent and caused plaintiff injury. The complaint stated that the decedent died on October 14, 1988, and since probate administration had not commenced, the complaint listed defendant as special administrator. On the same date the complaint was filed, plaintiff also filed a petition asking for ...

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