State of Illinois
92nd General Assembly
Legislation

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[ Introduced ][ Engrossed ][ Senate Amendment 001 ]


92_SB0195enr

 
SB195 Enrolled                                 LRB9201436RCtm

 1        AN ACT concerning civil procedure.

 2        Be  it  enacted  by  the People of the State of Illinois,
 3    represented in the General Assembly:

 4        Section  5.  The Code of Civil Procedure  is  amended  by
 5    changing Section 2-616 as follows:

 6        (735 ILCS 5/2-616) (from Ch. 110, par. 2-616)
 7        Sec.  2-616.   Amendments.  (a)  At any time before final
 8    judgment amendments may be allowed  on  just  and  reasonable
 9    terms, introducing any party who ought to have been joined as
10    plaintiff  or  defendant,  dismissing any party, changing the
11    cause of action or defense or adding new causes of action  or
12    defenses,  and in any matter, either of form or substance, in
13    any process, pleading, bill of  particulars  or  proceedings,
14    which may enable the plaintiff to sustain the claim for which
15    it  was  intended  to  be  brought or the defendant to make a
16    defense or assert a cross claim.
17        (b)  The cause of action, cross claim or defense  set  up
18    in  any amended pleading shall not be barred by lapse of time
19    under any statute or contract  prescribing  or  limiting  the
20    time within which an action may be brought or right asserted,
21    if  the  time  prescribed or limited had not expired when the
22    original pleading was filed, and if it shall appear from  the
23    original  and  amended  pleadings  that  the  cause of action
24    asserted, or the defense or cross  claim  interposed  in  the
25    amended   pleading  grew  out  of  the  same  transaction  or
26    occurrence set up in the original pleading, even  though  the
27    original  pleading  was defective in that it failed to allege
28    the performance of some act or the existence of some fact  or
29    some other matter which is a necessary condition precedent to
30    the  right  of recovery or defense asserted, if the condition
31    precedent has in fact been performed, and for the purpose  of
 
SB195 Enrolled              -2-                LRB9201436RCtm
 1    preserving the cause of action, cross claim or defense set up
 2    in  the  amended  pleading,  and  for  that  purpose only, an
 3    amendment to any pleading shall be held to relate back to the
 4    date of the filing of the original pleading so amended.
 5        (c)  A pleading may be amended at  any  time,  before  or
 6    after  judgment, to conform the pleadings to the proofs, upon
 7    terms as to costs and continuance that may be just.
 8        (d)  A cause of action against a  person  not  originally
 9    named  a  defendant  is not barred by lapse of time under any
10    statute or contract prescribing or limiting the  time  within
11    which  an action may be brought or right asserted, if all the
12    following  terms  and  conditions  are  met:  (1)  the   time
13    prescribed  or  limited  had  not  expired  when the original
14    action was commenced; (2) failure to join  the  person  as  a
15    defendant was inadvertent; (3) service of summons was in fact
16    had  upon  the  person,  his  or her agent or partner, as the
17    nature of the defendant made appropriate, even though  he  or
18    she  was served in the wrong capacity or as agent of another,
19    or upon a trustee who has title to but no power of management
20    or control over real property constituting a trust  of  which
21    the  person is a beneficiary; (4) the person, within the time
22    that the action might have been brought or the right asserted
23    against him or her plus the time for service permitted  under
24    Supreme  Court  Rule  103(b),  received  such  notice  of the
25    commencement of the  action  that  the  person  will  not  be
26    prejudiced in maintaining a defense on the merits and knew or
27    should  have  known  that,  but  for a mistake concerning the
28    identity of the proper party,  the  action  would  have  been
29    brought  against him or her knew that the original action was
30    pending and that it grew out of a transaction  or  occurrence
31    involving  or  concerning  him or her; and (3) (5) it appears
32    from the original and amended pleadings  that  the  cause  of
33    action  asserted in the amended pleading grew out of the same
34    transaction or occurrence set up in  the  original  pleading,
 
SB195 Enrolled              -3-                LRB9201436RCtm
 1    even  though  the  original pleading was defective in that it
 2    failed to allege the performance of some act or the existence
 3    of some fact or  some  other  matter  which  is  a  necessary
 4    condition  precedent  to  the  right  of  recovery  when  the
 5    condition  precedent  has  in  fact  been performed, and even
 6    though the person was not named originally  as  a  defendant.
 7    For the purpose of preserving the cause of action under those
 8    conditions,  an  amendment  adding  the person as a defendant
 9    relates back to the  date  of  the  filing  of  the  original
10    pleading so amended.
11        (e)  A  cause  of  action against a beneficiary of a land
12    trust not originally named a defendant is not barred by lapse
13    of time under any statute or contract prescribing or limiting
14    the time within which an  action  may  be  brought  or  right
15    asserted,  if all the following terms and conditions are met:
16    (1) the cause of action arises from  the  ownership,  use  or
17    possession  of real estate, record title whereto is held by a
18    land trustee; (2) the time  prescribed  or  limited  had  not
19    expired  when the original action was commenced; (3) the land
20    trustee of record is  named  as  a  defendant;  and  (4)  the
21    plaintiff  proceeds  with  reasonable diligence subsequent to
22    the commencement of the action to serve process upon the land
23    trustee, to determine the identity of the beneficiary, and to
24    amend the complaint to name the beneficiary as a defendant.
25        (f)  The changes made by this amendatory Act of the  92nd
26    General  Assembly  apply  to all complaints filed on or after
27    the effective date of this amendatory Act, and to  complaints
28    filed before the effective date of this amendatory Act if the
29    limitation period has not ended before the effective date.
30    (Source: P.A. 85-907.)

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