Borkoski v. Tumilty

7 Citing cases

  1. Leonard v. City of Streator

    447 N.E.2d 489 (Ill. App. Ct. 1983)   Cited 19 times
    In Leonard v. City of Streator (1983), 113 Ill. App.3d 404, 447 N.E.2d 489, dramshop plaintiffs sued an individual under the belief that the individual was the owner and operator of a tavern.

    [Citation.]" As this court stated in Borkoski v. Tumilty (1977), 52 Ill. App.3d 839, 842, 368 N.E.2d 136: "The true test in cases such as this is whether the party sued is the real party in interest." • 2, 3 In the instant case, despite the circuit court's findings of misnomer, it is evident that this is not a case of misnomer. From the record, and the original designation in the complaint, it must be concluded that the intent of the plaintiffs in their original complaint was to bring an action against the individual Delbert Anderson, who was doing business as the Double D Tavern. They believed that Anderson, as an individual, owned and operated the tavern.

  2. Ellis v. Borisek

    220 Ill. App. 3d 48 (Ill. App. Ct. 1991)   Cited 9 times
    In Ellis v. Borisek, 220 Ill. App.3d 48, 580 N.E.2d 899 (1991), plaintiff sued Friday's of Peru, Ltd., as owner and operator of the tavern where the driver that hit plaintiff had been drinking, although the tavern was operated as a sole proprietorship by Alan Borisek. The court found this to be a misnomer since service was had on Borisek as an agent of Friday's, the complaint informed Borisek that plaintiff intended to sue the tavern in which plaintiff had been drinking, and the same law firm that represented Borisek individually represented Friday's.

    The test in deciding whether the misnomer statute applies is whether the party sued is the real party in interest. ( Borkoski v. Tumilty (1977), 52 Ill. App.3d 839, 368 N.E.2d 136.) If section 2-401(b) applies, service of summons after the expiration of the statute of limitations does not bar the suit, provided the plaintiff used reasonable diligence in obtaining service upon the proper defendant. In cases of mistaken identity, however, service upon the proper defendant is required before the expiration of the time provided in the statute of limitations.

  3. Barbour v. Fred Berglund Sons, Inc.

    208 Ill. App. 3d 644 (Ill. App. Ct. 1990)   Cited 25 times
    Holding that "[t]he test in deciding whether the misnomer statute applies is whether the party sued is the real party in interest"

    • 2 The test in deciding whether the misnomer statute applies is whether the party sued is the real party in interest. ( Borkoski v. Tumilty (1977), 52 Ill. App.3d 839, 368 N.E.2d 136.) If section 2-401(b) applies, service of summons after the expiration of the statute of limitations does not bar the suit, provided that the plaintiff used reasonable diligence in obtaining service upon the proper defendant. However, in cases of mistaken identity, service upon the proper defendant is required before the expiration of the time provided in the statute of limitations.

  4. Yedor v. Centre Properties, Inc.

    173 Ill. App. 3d 132 (Ill. App. Ct. 1988)   Cited 23 times
    In Yedor, this court found that section 2-401(b) applied where the plaintiff served an agent of the real party in interest, Ace Disposal Division of Waste Management of Illinois, Inc., which the plaintiff had incorrectly named in his complaint as Ace Disposal Service, Inc., an existing entity.

    The pivotal determination is whether plaintiff actually serves the real party in interest with a copy of the complaint and summons, within the time limits allowed by law, so that actual notice of the complaint that has been lodged against it and notice of the need to respond has been given to that party in interest, albeit incorrectly named. Ill. Rev. Stat. 1985, ch. 110, par. 2-401(b); Janove v. Bacon (1955), 6 Ill.2d 245, 250, 128 N.E.2d 706; Hoving v. Davies (1987), 159 Ill. App.3d 106, 109, 512 N.E.2d 729; Thielke v. Osman Construction Corp., 129 Ill. App.3d at 951; Hatcher v. Kentner, 120 Ill. App.2d at 575; Leonard v. City of Streator (1983), 113 Ill. App.3d 404, 408, 447 N.E.2d 489; Clinton v. Avello (1982), 105 Ill. App.3d 336, 338, 434 N.E.2d 355; Ashley v. Hill (1981), 101 Ill. App.3d 292, 294, 427 N.E.2d 1319; Borkoski v. Tumilty (1977), 52 Ill. App.3d 839, 842, 368 N.E.2d 136. • 2 Here, an agent of the real party in interest, Ace Disposal Division of Waste Management of Illinois, Inc., was actually served with summons and with a copy of Centre's amended third-party complaint on October 10, 1985, one week before Yedor's lawsuit against Centre was dismissed by the circuit court on October 17, 1985, upon settlement.

  5. Thielke v. Osman Construction Corp.

    129 Ill. App. 3d 948 (Ill. App. Ct. 1985)   Cited 20 times
    Holding the misnomer statute provided relief based in part on the fact that the body of the complaint demonstrated that the plaintiff intended to sue the general contractor and owner of the real estate where plaintiff was injured, which party was misnamed in the complaint

    Plaintiff contends that the trial court erred in applying section 2-616(d) to a misnomer situation. He maintains that section 2-401(b) of the Code of Civil Procedure applies and allows the correction of a misnomer in a complaint where process was served after the expiration of the statute of limitations. • 1 Section 2-401(b) applies in those cases where the proper party or real party in interest is sued under the wrong name. ( Hatcher v. Kentner (1983), 120 Ill. App.3d 571, 458 N.E.2d 131; Borkoski v. Tumilty (1977), 52 Ill. App.3d 839, 368 N.E.2d 136.) Section 2-401(b) provides:

  6. Hatcher v. Kentner

    458 N.E.2d 131 (Ill. App. Ct. 1983)   Cited 9 times
    In Hatcher v. Kentner (1983), 120 Ill. App.3d 571, 458 N.E.2d 571, 458 N.E.2d 131, the court allowed plaintiff to correct her complaint which named Danelle Kentner instead of Earline Kentner as the operator of the vehicle that struck plaintiff.

    We disagree with defendant, however, that the rest of the requirements of 2-616(d) were not met, but it is immaterial since the statute requires that the cause of action is barred unless all of the requirements are met and clearly (d)(3) was not. The cases cited by plaintiff in support of her allegation that naming Danelle Kentner as a defendant was merely an example of a misnomer as opposed to naming the wrong party clearly support, in our opinion, the plaintiff's position that plaintiff in fact named the proper party under the wrong name. ( Clinton v. Avello (1982), 105 Ill. App.3d 336, 434 N.E.2d 355; Fleshner v. Copeland (1958), 13 Ill.2d 72, 147 N.E.2d 329; Schultz v. Gerstein (1977), 50 Ill. App.3d 586, 365 N.E.2d 1128; Van Burkom v. Holquist (1962), 36 Ill. App.2d 254, 183 N.E.2d 890 (abstract); Borkoski v. Tumilty (1977), 52 Ill. App.3d 839, 308 N.E.2d 136.) Plaintiff argues that since she used pronouns which clearly did not refer to Daniel Kentner, ("she" and "her," etc.), plaintiff's intent was evident that she was referring to a female Kentner and not a male Kentner. In our opinion the circuit court erred in denying plaintiff the opportunity to correct the name of Danelle Kentner to that of Earline Kentner.

  7. Ashley v. Hill

    427 N.E.2d 1319 (Ill. App. Ct. 1981)   Cited 18 times
    Holding that plaintiff's suit against Paul Jovanvic, the deceased father of Nestor Jovanovic, was a case of mistaken identity, not misnomer, even though plaintiff had intended to sue Nestor

    Plaintiff's authorities present factual situations applying the rule of misnomer, but they must be distinguished from this case. In Borkoski v. Tumilty (1977), 52 Ill. App.3d 839, 368 N.E.2d 136, appeal denied (1978), 67 Ill.2d 591, plaintiff sued the real party-in-interest and served it with process within the statute of limitations so that it had notice it was being sued; however, as the defendant was misnamed in the pleadings and summons, plaintiff was allowed to amend. Here defendant was not sued and served within the statute of limitations; the wrong party was sued and attempted to be served due to a mistake in identity.