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| [ Introduced ] | [ Enrolled ] | [ Senate Amendment 001 ] |
92_SB0195eng SB195 Engrossed 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 Engrossed -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 a15defendant was inadvertent; (3) service of summons was in fact16had upon the person, his or her agent or partner, as the17nature of the defendant made appropriate, even though he or18she was served in the wrong capacity or as agent of another,19or upon a trustee who has title to but no power of management20or control over real property constituting a trust of which21the 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 herknew that the original action was30pending and that it grew out of a transaction or occurrence31involving 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 Engrossed -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.)