dissenting:
There is a limit to which the courts should go in protecting litigants from gross ineptitude of counsel; it has been exceeded here. I hasten to add that this statement is not intended to apply to present counsel, who only represent plaintiff on this appeal.
Plaintiff’s complaint, filed in 1979, against “South Roxana Market,” was commenced against a nonentity. (Lewis v. West Side Trust & Savings Bank (1941), 377 Ill. 384, 36 N.E.2d 573.) The sheriff, undoubtedly perplexed, made a return of service on a corporation form, reasonably assuming that plaintiff intended to sue a corporation. During the extensive discovery that followed, Edith Feuquay’s deposition was taken. She stated in answers that should have been abundantly clear to any attorney, that the market was not incorporated but was operated by her as a sole proprietorship. The majority’s reading of her deposition appears to me exceedingly strained. Inexplicably, none of these events alerted counsel for plaintiff that the complaint filed was defective, and the years passed until March of 1984 when the present motion to amend was filed.
The majority opinion states that “[n]o question was raised by motion or otherwise regarding the propriety of naming South Roxana Market as defendant in plaintiff’s initial complaint.” This, and other statements, have placed the burden of correcting the glaring errors in these proceedings on the defendant. By some curious logic, the “inadvertence” becomes that of the defendant, who is faulted for not correcting plaintiff’s errors, who is then rewarded for her gross neglect.
I can find no support for the result reached here in any reported Illinois case. Plaintiff did nothing to correct her mistake until the passage of almost four years after it should have been apparent that South Roxana Market was a sole proprietorship. As I read Fields v. 6125 Indiana Avenue Apartments, Inc. (1964), 47 Ill. App. 2d 55, 196 N.E.2d 485, it stands as authority for affirmance of the trial court’s decision. “Inadvertence” does not include a failure to act for a period of several years after the facts are known or should be known, whether brought to a party’s attention in answer to pleadings or on oral or written interrogatories.
The plaintiff has briefly alluded in her brief to the act relating to conducting business under an assumed name (Ill. Rev. Stat. 1983, ch. 96, par. 4 et seq.) and suggested its applicability under these facts. The court has addressed this issue more at length; however, the plaintiff's assessment of its applicability is incorrect.
Defendant did not hold itself out as a corporation. There was no proof adduced that Edith Feuquay did business under an assumed name. It would appear that South Roxana Market was a neighborhood market. The record is silent as to the manner in which the business was carried on.
In any event, if in fact Feuquay was doing business under an assumed name, section 6 of the Act (Ill. Rev. Stat. 1983, ch. 96, par. 8a) provides that if her identity was unknown, which it was not, then a civil action may be brought against her “by filing suit against the business ■under its assumed name, naming all known owners, and designating an ‘unknown owner or owners’ the other person or persons transacting business under such assumed name.” (Cigan v. St. Regis House Hotel (1979), 72 Ill. App. 3d 884, 391 N.E.2d 197; Curtis v. Albion-Brown’s Post 590 American Legion of Illinois (1966), 74 Ill. App. 2d 144, 219 N.E.2d 386.) This statute was not complied with even assuming its applicability.