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Docket No. 90796-Agenda 31-September 2001.

RICHARD MORTON, as Independent Adm'r for the Estate of 
William R. Morton, Appellant, v. MADISON COUNTY 
NURSING HOME AUXILIARY et al. (The County of Madison, Appellee).

Opinion filed November 21, 2001.

JUSTICE THOMAS delivered the opinion of the court:

The issue in this case is whether the plaintiff's amendedcomplaint adding a new defendant relates back to his originalcomplaint under section 2-616(d) of the Code of Civil Procedure(735 ILCS 5/2-616(d) (West 2000)).

BACKGROUND

William Morton was a resident of the Madison CountyNursing Home. In 1998, William perished when he either fell orjumped from a third-story window of the nursing home. Later thatyear, the administrator of William's estate, Richard Morton, timelyfiled a two-count complaint pursuant to the Wrongful Death Act(740 ILCS 180/0.01 (West 2000)) and the Survival Act (755 ILCS5/27-6 (West 2000)) against the Madison County Nursing HomeAuxiliary (Auxiliary), and served its registered agent, the directorof the nursing home (hereinafter, the first service). The Auxiliaryfiled an answer raising the affirmative defense that it has no title,interest, authority, or control over the nursing home. Instead, theAuxiliary contended, Morton should have named Madison Countyas the defendant and served its agent, the county clerk, because thenursing home was subject to the authority and control of theCounty.

After the statute of limitations had expired, Morton moved toamend his complaint under section 2-616(d) of the Code of CivilProcedure (735 ILCS 5/2-616(d) (West 2000)) to add the Countyas a defendant. Pursuant to that section, Morton averred that: (1)the original complaint had been filed within the limitations periodfor a wrongful-death action; (2) the failure to join Madison Countyas a defendant was inadvertent; (3) the summons was originallyserved on the director of the nursing home as an agent of MadisonCounty; (4) Madison County was aware of the pending actionfrom its inception; and (5) the cause of action asserted against theCounty in the amended complaint grew out of the same occurrenceset forth in the original complaint.

The trial court allowed Morton's amendment, and Mortonserved the amended complaint on the County's registered agent,the county clerk (hereinafter, the second service). In response,Madison County filed a motion to dismiss, arguing that Morton'samended complaint did not relate back to his original complaintbecause it failed to comply with section 2-616(d). Specifically, theCounty argued that the nursing home director, whom Morton hadinitially served, was not the proper agent of the County forpurposes of service. Therefore, Morton failed to satisfy the thirdprong of section 2-616(d) which requires actual service on theproper defendant. See 735 ILCS 5/2-616(d)(3) (West 2000).Morton responded that even if his first service did not satisfy thethird prong, his second service-that on the county clerk after thelimitations period had expired-did satisfy the third prong.

The trial court granted the County's motion to dismiss, andMorton appealed. The appellate court affirmed, holding first thatMorton's service on the nursing home director was not properunder section 2-211 of the Code of Civil Procedure because theproper agent for service on a county is the chairperson of thecounty board or the county clerk. Section 2-211 provides that,"summons may be served by leaving a copy with the chairpersonof the county board or county clerk in the case of a county ***."735 ILCS 5/2-211 (West 2000). The court concluded that, becausethe director was not an "agent" of the County for purposes ofservice, Morton's first service did not satisfy the third prong ofsection 2-616(d). The appellate court also held that Morton couldnot rely on his second service to satisfy section 2-616(d) becausethe third prong of section 2-616(d) requires that service occurwithin the limitations period. Morton's second service did notoccur until after the limitations period; therefore, the court heldthat it did not satisfy the third prong. The appellate court thusconcluded that, under section 2-616(d), Morton's amendedcomplaint adding the County as a defendant did not relate back tohis original complaint. 317 Ill. App. 3d 561.

We granted Morton's petition for leave to appeal pursuant toSupreme Court Rule 315(a) (177 Ill. 2d R. 315(a)), and now affirmthe appellate court.

ANALYSIS

Under the common law, the failure to join the proper partybefore the running of the statute of limitations was fatal to theplaintiff's claim. Fitzpatrick v. Pitcairn, 371 Ill. 203 (1939); C.Drechsler, Annotation, Change in Party After Statute ofLimitations Has Run, 8 A.L.R.2d