dissenting:"
I respectfully dissent and consider it necessary to highlight certain facts which I deem important. In her complaint, plaintiff complains of Neil Yaeger doing business as Rick’s Restaurant & Cocktail Lounge and alleges that Neil Yaeger is the owner of said lounge. Summons was issued directing the sheriff to serve Neil Yaeger c/o Rick’s Restaurant & Cocktail Lounge and the return shows that the sheriff personally served Neil Yaeger. Plaintiff, apparently thinking that Rick’s Restaurant & Cocktail Lounge was an individual proprietorship and not a corporation, sued the wrong defendant. Discovering her mistake after the appropriate statute of limitations had run, plaintiff moved to amend her complaint by “adding Rick’s, Inc. as a party defendant and to change the name of the defendant to Rick’s, Inc.” On that same date, Neil Yaeger filed a motion for summary judgment on both counts of the complaint. At the hearing on both of the above motions, plaintiffs attorney stated his desire to add Rick’s, Inc. as a party defendant and to then dismiss Neil Yaeger as a party defendant. After granting plaintiff s motion to add Rick’s, Inc. as a party defendant and Neil Yaeger’s motion for summary judgment on Counts I and II, the trial court asked plaintiffs attorney if he wanted summons to issue against the added defendant, Rick’s, Inc. Plaintiffs attorney stated that under section 46 of the Civil Practice Act service of process on Rick’s, Inc. was not necessary. Plaintiffs attorney further stated that he was then ready to proceed to trial. Noting that Neil Yaeger was served in his capacity as an individual and not as a corporate agent, that Rick’s, Inc. had never been served nor filed an appearance, and that plaintiffs attorney had refused the opportunity to serve Rick’s, Inc. the trial court dismissed the cause for want of prosecution. It is my opinion that the trial court ruled correctly for the reasons I set forth below.
Under the common law, failure to join the proper party before the running of the statute of limitations was fatal to the plaintiff s claim. (See Cody v. Ladurini (1969), 109 Ill. App. 2d 116, 249 N.E.2d 315; Jackson v. Navik (1974), 17 Ill. App. 3d 672, 308 N.E.2d 143; Annot., 8 A.L.R.2d 6, 127 § 63 (1949).) However, section 46(4) of the Illinois Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 46(4)) provides that if certain conditions and terms are met “[a] cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted * ° Section 46(4) then goes on to describe the conditions which must be present in order to preclude a defendant’s using the statute of limitations as a defense. Section 46(4) concludes stating that “[f]or the purpose of preserving the cause of action under those conditions, an amendment adding the person as a defendant relates back to the date of the filing of the original pleading so amended.” Thus, assuming that the conditions set forth in section 46(4) are met in the instant casej the added defendant, Rick’s, Inc., could not use the statute of limitations as a defense to plaintiffs claim against it. However, there is no provision in section 46(4) which waives the requirement of valid service of process on the added or substituted defendant in order to acquire in personam jurisdiction over said defendant. As stated in Robinson v. Chicago National Bank (1961), 32 Ill. App. 2d 55,62,176 N.E.2d 659,663:
“Service upon the original defendant as ‘agent of another’ does not obviate the necessity of acquiring jurisdiction over the subsequently named defendant by another service. Service upon the new defendant cannot be had until he is named.”
The well-established general rule is that absent a general appearance, proper service of process is essential in order for the court to acquire in personam jurisdiction over a defendant. As stated in Stone v. Adler, Inc. v. Cooper (1974), 20 Ill. App. 3d 576, 577-78, 315 N.E.2d 56, 58:
“It is axiomatic that one of the essentials of a valid judgment is that the court have jurisdiction to render it, and service of process on a defendant is a necessary and imperative element and prerequisite before the court can have jurisdiction to enter a judgment against him. (Janove v. Racon, 6 Ill. 2d 245,128 N.E.2d 706.)”
Plaintiff argues that service of process was in fact had upon the added defendant, Rick’s, Inc., inasmuch as plaintiff did personally serve Neil Yaeger, the vice-president and manager of Rick’s, Inc., albeit in the wrong capacity. However, jurisdiction over a corporation is an entity distinct and apart from its agents, a distinction which would be meaningless if a corporation could properly be served with process by serving its agent as an individual. As stated in Abdallah v. Weil (1935), 168 Tenn. 382, 79 S.W.2d 284, 285:
“While a corporation, when sued, may be brought into court by service upon its * * “ [agent] as such, the corporation is a legal entity distinct from that of the individual who happens to be its [agent], and a suit against the one is not a suit against the other.”
Process against a corporation must run against it in the corporate name, and not against its officers or agents. (W. Fletcher, Cyclopedia Corporation § 4403, at 283 (perm. ed. 1976). See also McFadden v. Mid-States Manufacturing Corp. (1953), 175 Kan. 240,262 P.2d 838; Sanders v. Metzger (E.D. Pa. 1946), 66 F. Supp. 262; Russell v. Bea Staple Manufacturing Co. (1966), 266 N.C. 531, 146 S.E.2d 459.) The summons in the instant case, directing the sheriff to serve Neil Yaeger individually and not as agent of Rick’s, Inc., is insufficient to give the court jurisdiction over the corporation.
Furthermore, it is a basic law that the court does not obtain in personam jurisdiction by having service made upon a party not named in a suit. (Lebanon Trust & Savings Bank v. Ray (1973), 10 Ill. App. 3d 345, 293 N.E.2d 623.) See also Lewis v. West Side Trust & Savings Bank (1941), 377 Ill. 384, 36 N.E.2d 573. If a party defendant is added or substituted by order of court in a pending action, absent a general appearance or waiver of service, said party must be served with process in order for the court to acquire jurisdiction over him. (Grewenig v. American Banking Co. (1938), 293 Ill. App. 604; Proctor v. Wells Brothers Co. (1913), 181 ill. App. 468; 62 Am. Jur. 2d 819 Process § 36 (1972).) At the time Neü Yaeger was served, Rick’s, Inc. was not a party to the suit and due to plaintiff s failure to subsequently serve Rick’s, Inc., the trial court never acquired jurisdiction over said defendant.
The factual situation presented in the instant case, i.e., where plaintiff complains against and has process served on an individual and later discovers that the proper party defendant is in reality a corporation of which the individual is an officer, is not unique. (See Annot., 121 A.L.R. 1325 (1939).) However, cases have consistently held that such added corporate defendant should be served with process in order for the court to acquire jurisdiction over said defendant. See Annot., 121 A.L.R. 1325, 1341-46 (1939).
I realize that our courts have continually acknowledged that section 46 of the Civü Practice Act is to be liberally construed (Davis v. Hoeffken Bros. (1965), 60 Ill. App. 2d 139,208 N.E.2d 370) to the end that cases be decided on their merits and not by procedural technicalities. (Birchfield v. Wabash-Monroe Garage & Parking Corp. (1969), 113 Ill. App. 2d 178, 252 N.E.2d 89.) However, it is my opinion that the drafters of section 46 never intended to lessen the requirements of proper service of process, nor do I view proper service of process as a procedural technicality.
I further believe that the cases principally relied upon by the majority are distinguishable from the instant case. Silver v. Lee Shell Equipment Corp. (1961), 31 Ill. App. 2d 266,175 N.E.2d 287, discussed the issue of whether or not plaintiff had fulfilled the requirements of section 46(4) so as to prevent the added defendant’s pleading the statute of limitations as a bar to plaintiffs complaint. Nowhere in Silver does the court discuss whether plaintiff has to serve the added defendant. I agree with the language of the court in Silver that “section 46(4) must not be hamstrung by a narrow interpretation of its salutory provisions.” However, in my opinion the clear intention of the drafters of section 46(4) is to prevent an added defendant, if certain prerequisites are met, from pleading the statute of limitations as a bar to plaintiff s complaint and not to change the well-established rules regarding proper service of process.
The other case relied upon principally by the majority, Ingram v. MFA Insurance Co. (1974), 18 Ill. App. 3d 560, 309 N.E.2d 690, is also distinguishable from the instant case. In Ingram, George M. Campbell was served as the purported agent of ME A, a nonentity and trade name for a group of companies. In reality, Countryside Casualty Company was the actual corporation. In upholding the judgment for plaintiff, this court stated that defendant was actually served but that the process did not refer to him by his correct name. On appeal, plaintiff in Ingram moved to amend the name of defendant and this court granted the motion. Unlike Ingram, plaintiff in the instant case served Neil Yaeger in his individual capacity and not as an agent of Rick’s, Inc. Plaintiff then moved to add the correct corporate defendant. The trial court never ordered that defendant’s name be changed nor does the plaintiff make such a request in this court. In my estimation, the instant plaintiff sued the wrong party, an individual and not a corporation.
I also reject the majority’s characterization of service of process of the added corporate defendant as a useless act. Rick’s, Inc. was never properly served with process and thus the trial court never acquired jurisdiction over said defendant. Under such circumstances, service of process was not a useless act but rather a prerequisite to the court’s rendering a valid judgment against Rick’s, Inc.
In the instant case the trial court, after allowing plaintifFs motion to add Rick’s, Inc. as a defendant, asked counsel for plaintiff if he wanted summons to issue as to Rick’s, Inc. PlaintifFs counsel responded that it was not necessary to serve Rick’s, Inc. Due to the fact that Rick’s, Inc. was never properly served with process, the trial court never acquired jurisdiction over that corporate defendant. Lacking such jurisdiction over Rick’s, Inc. the trial court could not properly proceed to try the case and correctly ordered the cause dismissed on its own motion.