dissenting:
Section 2 — 401(b) of the Illinois Code of Civil Procedure provides: "Misnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires.” (735 ILCS 5/2 — 401(b) (West 1992).) "The misnomer rule is narrow, however, and applies only where an action is brought and summons served upon a party intended to be made a defendant (thus giving actual notice of the lawsuit against the real party-in-interest), but the process and complaint do not refer to the person by his correct name.” (Ashley v. Hill (1981), 101 Ill. App. 3d 292, 294, 427 N.E.2d 1319.) If, however, the wrong party is joined and served, as in the present case, section 2 — 401(b) is of no consequence. "The courts of this State have long distinguished the misnomer rule, which is applicable only to correctly joined and served but misnamed parties, from those cases where due to mistaken identity the wrong person is joined and served.” Ashley, 101 Ill. App. 3d at 294-95.
The pivotal inquiry concerning misnomer is whom the plaintiff intended to sue. "The most probative evidence of who[m] a plaintiff intended to sue is the party named by the plaintiff in the complaint. If such a party in fact exists, but is not the real party in interest, a court can conclude that the plaintiff has mistakenly sued the wrong party.” (Clinton v. Avello (1982), 105 Ill. App. 3d 336, 338, 434 N.E.2d 355; Greil v. Travelodge International, Inc. (1989), 186 Ill. App. 3d 1061, 1064, 541 N.E.2d 1288.) Where the record evinces objective facts indicating an intent to sue another, it is a case of mistake and not misnomer. Webb v. Ambulance Service Corp. (1994), 262 Ill. App. 3d 1039, 1046, 635 N.E.2d 643.
In applying the foregoing law to this case, I find it inescapable that the plaintiff intended to name and serve and did in fact name and serve the wrong party. Plaintiff knew from the police report that the real party in interest was Dominic Folino, and sent a lien letter to Dominic Folino. Yet, after being informed by State Farm that its insured was Domenico Folino, plaintiff named and served Domenico Folino. Clearly, this is a case of mistaken identity and not misnomer. Domenico Folino is the wrong party and in fact exists.
Contrary to the majority’s view, I find Clinton v. Avello, which also involved a father (owner) and son (driver), to be controlling precedent. Although the majority attempts to distinguish Clinton on the basis that the father and son in the instant case resided in the same residence, I respectfully submit such a distinction is insignificant and contrary to established authority. The pertinent inquiry is whether the proper party was named and served but by an incorrect name. The fact that both parties resided in the same household only helps explain how the mistaken identity occurred.
Moreover, this identical situation has been addressed and decided contrary to the majority position. In Stevens v. Yonker (1973), 12 Ill. App. 3d 233, 298 N.E.2d 395, plaintiff filed a complaint against "William Yonker” and obtained service by leaving a summons with "Mrs. W. Yonker (wife).” The defendant, as in the instant case, filed an appearance and answer which admitted ownership of the car, but denied other allegations. Discovery revealed the true party in interest was "Bruce Yonker” who, as in the instant case, was the son of the named party and resided in the same house. The plaintiff attempted to amend claiming "William” was a misnomer. The court held:
"The single issue is whether plaintiff sued the proper party but under the wrong name or sued the wrong party. Plaintiff sued and served William, who was Bruce’s father and the owner of the automobile in question. No service was attempted or made on the defendant’s son, Bruce, the driver. Under the facts, there is no doubt that the plaintiff sued the wrong party. This is not changed by the fact that the owner and driver of the vehicle in this instance had the same last name, were father and son, and resided in the same household.” (Emphasis added.) Stevens, 12 Ill. App. 3d at 234.
Although the majority attempts to distinguish Stevens by saying that in the instant case service was made on Dominic, I disagree. The record is clear that the person named in the complaint and summons was Domenico Folino. The fact Dominic and his mother both knew that Dominic was the real party in interest is simply not relevant as to who in fact was named and served.
Accordingly, I respectfully submit that the trial judge correctly determined that Domenico Folino was the wrong party, that naming and serving him was a case of mistaken identity, and that the misnomer rule does not apply. I would affirm.