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07/24/96 RON MAURO v. COUNTY WINNEBAGO AND

July 24, 1996

RON MAURO, PLAINTIFF-APPELLANT,
v.
THE COUNTY OF WINNEBAGO AND WINNEBAGO COUNTY SHERIFF, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Winnebago County. No. 94--L--375. Honorable Galyn W. Moehring, Judge, Presiding.

Released for Publication August 26, 1996.

The Honorable Justice Colwell delivered the opinion of the court: Bowman and Thomas, JJ., concur.

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

Plaintiff, Ron Mauro, appeals the circuit court's order dismissing his amended complaint against defendant Winnebago County sheriff for failing to comply with the applicable statute of limitations. Plaintiff contends the court erred in ruling that the amended pleading did not relate back to the date of filing of the original complaint (see 735 ILCS 5/2--616(d) (West 1994)). Specifically, plaintiff contends that the court erroneously held that two of the conditions of section 2--616(d) were not met: (1) that the sheriff's agent was actually served during the limitations period, albeit in a mistaken capacity; and (2) that the sheriff had notice of the proceeding during the limitations period.

On September 26, 1994, plaintiff filed a complaint against defendant County of Winnebago. Plaintiff alleged that he had been injured on October 3, 1993, while a prisoner at the Winnebago County jail.

The county moved to dismiss the complaint, contending that it was not the proper party defendant. The county argued that by law the county sheriff was responsible for the operation of the jail and, citing the appellate court's opinion in Moy v. County of Cook, 244 Ill. App. 3d 1034, 185 Ill. Dec. 131, 614 N.E.2d 265 (1993), contended that the county could not be vicariously liable for the sheriff's alleged negligence in operating the jail.

Plaintiff did not file a response to the county's motion to dismiss, but instead moved for leave to amend his complaint. The court granted both motions and, on November 3, 1994, plaintiff filed his amended complaint naming only the Winnebago County sheriff as defendant. The complaint's substantive allegations are the same as those of the original pleading. The sheriff was served on December 9, 1994.

Represented by the same assistant State's Attorney who had appeared on behalf of the county, the sheriff moved to dismiss the amended complaint as barred by the one-year statute of limitations. See 745 ILCS 10/8--101 (West 1994). In response, plaintiff argued that the amended complaint related back to the filing of the original complaint, which was within the one-year limitation period. The sheriff replied that some of the conditions of section 2--616(d) had not been met. Specifically, the sheriff maintained that he had neither been served nor received actual notice of the suit within the limitations period. The court agreed and dismissed the amended complaint. Plaintiff perfected this appeal.

Section 2--616(d) provides that an amended complaint naming a new or additional defendant will relate back to the filing of the original complaint if certain conditions are met. Those conditions include (1) the original complaint was filed within the limitations period; (2) the failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the person, his agent, or partner, even though he or she was served in the wrong capacity or as the agent of another; (4) the newly named defendant, within the limitations period, knew the original action was pending and that it grew out of a transaction or occurrence involving or concerning him or her; and (5) it appears that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original complaint. 735 ILCS 5/2--616(d) (West 1994); Zincoris v. Hobart Brothers Co., 243 Ill. App. 3d 609, 613, 183 Ill. Dec. 679, 611 N.E.2d 1327 (1993).

Plaintiff first contends that, contrary to the trial court's finding, he satisfied the third condition of section 2--616(d). Plaintiff relies on section 2--211 of the Code of Civil Procedure, which provides in relevant part:

"In actions against public, municipal, governmental or quasi-municipal corporations, summons may be served by leaving a copy with the chairperson of the county board or county clerk in the case of a county ***." 735 ILCS 5/2--211 (West 1994).

Plaintiff points out that the original summons and complaint were served on the Winnebago County clerk. Plaintiff contends that, pursuant to section 2--211, the county clerk is the sheriff's agent for receiving process. The sheriff responds that he is not a "public, municipal, governmental or quasi-municipal corporation" and, thus, under the plain language of section 2--211, the county clerk is not his agent.

Plaintiff acknowledges that in Moy v. County of Cook, 159 Ill. 2d 519, 203 Ill. Dec. 776, 640 N.E.2d 926 (1994), the supreme court held that a sheriff is a county officer pursuant to article VII of the Illinois Constitution (Ill. Const. 1970, art. VII, ยง 4(c)). Plaintiff nonetheless contends that the sheriff is governed by the Counties Code (55 ILCS 5/1--1001 et seq. (West 1994)). Therefore, plaintiff ...


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