Jackson v. Navik

• Decision Date: 21 February 1974
• Docket Number: No. 72--171,72--171
• Citation: 308 N.E.2d 143,17 Ill.App.3d 672
• Parties: Robert JACKSON, Carol Jackson, Individually and as Mother and Next Friend of Debra Ann Jackson, a minor, Plaintiffs-Appellants, v. Mr. & Mrs. Charles NAVIK, d/b/a Helvitia Hotel et al., Defendants, Arbor Resort and Marina, Inc., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 143

308 N.E.2d 143

17 Ill.App.3d 672

Robert JACKSON, Carol Jackson, Individually and as Mother and Next Friend of Debra Ann Jackson, a minor Plaintiffs-Appellants, v. Mr. & Mrs. Charles NAVIK, d/b/a Helvitia Hotel et al., Defendants Arbor Resort and Marina, Inc., Defendant-Appellee.

No. 72--171.

Appellate Court of Illinois, Second District.

Feb. 21, 1974.

Joseph R. Curcio, Chicago, for plaintiffs-appellants.

Diver, Ridge, Brydges & Bollman, Waukegan, for defendant-appellee.

THOMAS J. MORAN, Justice.

Plaintiffs appeal from an order dismissing their amended complaint against Arbor Resort and Marina, Inc., (corporation). Plaintiffs contend that the trial court erred when it found that the amended complaint did not meet all requirements of Section 46(4) of the Civil Practice Act (Ill.Rev.Stat.1971, ch. 110, § 46(4)) and that the allegations of the amended complaint were insufficient to support plaintiffs' theory that the corporation was the alter ego of James J. Boarini doing business as the Arbor Resort and Marina.

On July 28, 1969, plaintiffs filed their original action under Article VI, Section 14 of the Liquor Control Act (Ill.Rev.Stat.1967, ch. 43, § 135) against Jerry Idstein and James Boarini, d/b/a Caroll's Resort and Marina, and others. The complaint alleged that on August 11, 1968, the defendants sold or gave alcoholic beverages to Robert Jackson which beverages caused his intoxication and that while intoxicated, he was severely injured. A summons issued on the day the complaint was filed; it was later returned 'not found' as to defendants Idstein and Boarini. An alias summons for the same defendants issued on January 8, 1970; it was similarly returned. On May 1, 1970, Boarini was served in his individual capacity as stated above. Idstein was never served.

Boarini filed a special and limited appearance which contained a motion to dismiss. In a supporting affidavit contesting the court's jurisdiction, he claimed to have had no knowledge of the incident prior to May 1, 1970; that he had not been served with summons until that date (despite the fact that, as stated in a later affidavit, he had been readily available for service and on the premises of the 'Arbor' virtually every day since July of 1969); and that plaintiffs' failure to obtain service prior to May 1, 1970, constituted a lack of due diligence resulting in his (Boarini's) substantial prejudice. The motion to dismiss was denied and Boarini filed his answer. He then moved for summary judgment premised on the fact that he was neither owner nor licensee of Caroll's Arbor Resort and Marina.

Plaintiffs were subsequently granted leave to amend their complaint by adding the corporation as an additional party defendant. On March 3, 1971, the corporation was served with summons and, on December 1, 1971, moved to dismiss the amended complaint. This motion was granted on the basis that the corporation had not been made a party to the action within the one-year statute of limitations (Ill.Rev.Stat.1971, ch. 43, § 135) and that by failing to show that the corporation or its agents had any knowledge of the action before the end of that period, plaintiffs had failed to comply with Section 46(4)(d) of the Civil Practice Act (Ill.Rev.Stat.1971, ch. 110, § 46(4)(d)). The court, pursuant to Supreme Court Rule 304 (Ill.Rev.Stat.1971, ch. 110A, Rule 304), found no reason to delay either the enforcement or appeal from the order and, on motion of the plaintiffs, defendant Boarini was dismissed with prejudice.

The plaintiffs contend that all requirements of Section 46(4) were met. That section states:

'A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute * * * limiting the time within which an action may be brought or right asserted, if All of the following terms and conditions are met: * * *' (Emphasis added)

Plainly, then, if any one requirement of Section 46(4) is not met, a plaintiff cannot avail himself of the relation-back doctrine espoused by this section. We therefore seek to determine whether plaintiffs here complied with subparagraph (d) of Section 46(4) which requires that:

'* * * the person, within the time that the action might have been brought or the right asserted against him, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him; * * *'

Plaintiffs allege that the subparagraph (d) requirement was met because knowledge of the pending suit is presumed from the date of the filing of the original complaint without regard to the date defendant is served or acquires actual knowledge of the suit. It is also their position that if the lawsuit against Boarini, individually, could be sustained despite his being served after the limitations period, the result should not be different because plaintiffs later discovered that the proper party was the corporation.

It is correct that an action is commenced when the complaint is filed (Ill.Rev.Stat.1971, ch. 110, § 13) and that in situations where the statute of limitations has run in the interval between the filing of the complaint and service of summons, the effect of the statute of limitations is avoided when reasonable diligence is exercised in obtaining service of process, (Ill.Rev.Stat.1971, ch. 110A, Rule 103(b); Lawrence v. Williamson Ford, Inc., 13 Ill.App.3d 880, 886, 300 N.E.2d 636 (1973)). Plaintiffs would have us apply this same principle to Section 46(4)(d) and, though they concede that there is no case directly on point, cite a number of cases where the knowledge of the after-named defendant is either assumed or presumed from the facts of the particular case. Having examined these cases, we find that in every instance the after-named defendant knew of the action before the statutory period of limitations had run. See, Moore v. Jewel Tea Co., 46 Ill.2d 288, 292--293, 263 N.E.2d 103, affg. 116 Ill.App.2d 109, 253 N.E.2d 636 (1970); Lau v. West Towns Bus Co., 16 Ill.2d 442, 449--450, 158 N.E.2d 63 (1959); Bates v. Wagon Wheel Country Club, Inc., 132 Ill.App.2d 161, 164, 266 N.E.2d 343 (1971); Cody v. Ladurini, 109 Ill.App.2d 116, 128, 249 N.E.2d 315 (1969); Lang v. Board of Ed. of Comm. Sch. Dist. No. 16, 109 Ill.App.2d 195, 198, 249 N.E.2d 862 (1969); Robinson v. Chicago Nat. Bank, 32 Ill.App.2d 55, 59, 176 N.E.2d 659 (1961); Silver v. Lee Shell Equipment Corp., 31 Ill.App.2d 266, 271, 175 N.E.2d 287 (1961).

A number of cases clearly state that allowing additional defenda...