concurring in part and dissenting in part:
I concur in that portion of the majority’s decision which holds that the filing was not in bad faith.
I also agree that the legislature’s failure to include dismissals for improper venue as a category within the savings statute may have been because cases entirely within Illinois (or entirely within the Federal system) are transferred rather than dismissed for improper venue. It is only when cases are involved in both systems that a dismissal for improper venue can occur. Finally, I agree with the majority’s concern that the basic intent of the savings statute could be frustrated by a defendant’s tactical choice of moving for dismissal on venue rather than jurisdictional grounds. I note that there is no evidence of such maneuvering in this case since the defendants’ motions allege both jurisdictional and venue bases.
Even though I agree with all of the above, I must dissent for three reasons. First, the wording of the statute is clear and the history of the amendments outlined by the majority makes it even more clear. The dismissals protected by the statute have evolved from the general “nonsuit” which was interpreted by Roth to the specific categories discussed in Conner. While we may feel that the legislature may have intended to include dismissals for improper venue if it had occurred to them, feelings about what the legislature might have done if it had thought of a particular problem are not a proper basis of statutory construction.
Second, the supreme court in Roth was dealing with a general term, “nonsuit,” while Conner dealt with specific terms such as those contained in the present statute, and Conner explicitly stated that the original action must have been dismissed on one of the grounds set forth in the statute:
“Section 24 thus allows a plaintiff, whose original action has been dismissed on specified grounds, to file an action again though the statute of limitations has run. If the dismissal was on one of the specified grounds, the statute provides, in effect, a new limitations period which will extend at least one year from the date of the dismissal.” (Emphasis added.) Conner, 99 Ill. 2d at 385, 459 N.E.2d at 956.
Finally, I completely disagree with that portion of the majority opinion which freely substitutes words in a statute and concludes “That reading does no damage to the fabric of the statute.” (200 Ill. App. 3d at 893.) If that reading does no damage, what then would be wrong with substituting any or all of the nine enumerated grounds for dismissal found in section 2 — 619 of the Code of Civil Procedure and concluding that they too do no damage?
It is a legislative, not a judicial, function to stitch the pieces of the safety jacket together, and it is certainly not a proper judicial function to substitute legs for arms and, in the next breath, to state that the substitution does no damage to the fabric.
For the above reasons I would affirm the trial court’s finding of no bad faith, but reverse its holding on the applicability of the savings statute.