*1 (No. 70510 . Appellee, v. GAYLE SIMPSON et DeCLERCK,
JACK
al., Appellants.
Opinion August 1991. BILANDIC, J., CLARK, J., dissenting. joined Decatur, Rhoades, C. of C. Jeffrey Taylor, Merry Carbondale, Robbins, Schwartz, Nicholas, Lit- both of & Ltd., ton Taylor, for appellants. Bartholomew, Cook, Shevlin, Keefe, A.
Joseph Bartholomew, Belleville, Ysursa, Ltd., Brauer & appellee.
JUSTICE MORAN delivered the of the court: opinion DeClerck, court Plaintiff, Jack filed suit the circuit defendants, of Christian that County alleging Gayle Television, and Inc. Simpson (Simpson) (WAND), WAND had false him. The defend broadcast statements about ants filed a motion to dismiss on the statute based 1987, 110, Stat. ch. (Ill. par. 201), limitations Rev. 13— which was denied. The circuit court then granted (134 defendants’ for Ill. application interlocutory appeal Thereafter, affirmed the 308). 2d R. appellate trial decision and remanded the cause for further court’s (200 Ill. 3d The defendants’ proceedings. peti for was allowed tion leave to appeal Ill. 2d R. 315). 13—217
The sole issue for is whether review section 1987, ch. Code of Civil Procedure Rev. Stat. (Ill. .the 110, 217) (hereinafter savings statute) appli par. 13— to a case that Federal district initially cable was im court, later that court because of and dismissed by proper venue. 1987,
In the sheriff Christian plaintiff, August filed a cause of action United County, originally Eastern District of Mis- States District Court for the 1986, the defendants broadcasted souri, that, alleging also al- complaint statements him. libelous about other with conspired that and WAND leged Simpson On a motion to dis- rights. defendants to violate his civil venue, and improper lack of jurisdiction miss issue, court, discussing jurisdictional Federal without on the and the counts WAND against Simpson basis of venue. improper action, Federal the dismissal of the
Following in the cir 30, 1988, on filed a complaint March plaintiff, that Illinois, alleging cuit court of Christian County, knowingly defendants and WAND broadcasted Simpson then filed a false statements him. The defendants about state defamatory motion to dismiss claiming alleged fil ments had been made more than one before therefore, the statute of limita ing complaint, 110, (Ill. par. 201) tions ch. period 13— the Illinois acknowledged had run. The defendants (Ill. Code of Civil Procedure had a statute Rev. that it did 217), argued but 13— not to this case. apply
In a written the circuit court denied opinion, judge the motion to there had not dismiss on basis court, been an adjudication the merits the Federal thus the dismissal of in Federal case was plaintiff’s The judge then held that voluntary. *3 thus, and the
applied, was, cause of action not time- barred, as it was within one from the dismissal year of the Federal action. the defendants’ Upon application, the circuit court certified the for question interlocutory review. Ill. 2d R. then 308.) appellate granted and, the for application interlocutory review court, with one affirmed the circuit justice dissenting, that the to all cases of in finding savings statute applied dismissals. 200 Ill. 3d 889. voluntary In pertinent part, the statute states: judgment plaintiff is entered for the but reversed
“[I]f appeal, or if a in plaintiff there is verdict favor of the and, a the upon judgment, judgment motion arrest of or the is voluntar- action against plaintiff, is entered the ily by the is dismissed plaintiff, dismissed the or action prosecution, by want or the action is dismissed for of then, jurisdiction, United States District Court lack for of bringing whether or not the time limitation for such expires during action, action pendency the of such the heirs, his or her plaintiff, executors or administrators may commence a new action within one or within limitation, the remaining period of is greater, whichever after such judgment against is reversed or entered the or plaintiff, after the voluntarily action is dismissed by plaintiff, the or action the is for want of prose dismissed cution, or the is by action a United States Dis trict Court lack of jurisdiction.” for (Emphasis added.) 1987, (Ill. 110, ch. par. 13— The instant case can if only be “saved” the can plaintiff show that a dismissal for venue within the improper fits statute.
theAt outset it should be verbiage noted of the statute must given be its mean plain ordinary and the intention of ing, is legislature best surmised from the v. language (Franzese statute. Trinko 66 Ill. 2d (1977), 139.) In order to understand fully savings statute, review of its that of history (and its Ill. Rev. predecessor, 24a) This necessary. court first the statute in the interpreted case of Roth v. Assurance Co. 32 Ill. (1964), Northern 2d 40. The language of effect at the time of Roth was as follows:
“In any of the actions specified any of sections any act or other act or in where any contract limited, time of if any commencement action is judg- ment shall given plaintiff, be and the same re- be error, appeal; versed writ of or or if a upon verdict and, pass plaintiff, for the matter upon alleged arrest of judgment, judgment against plaintiff; given or, or has been nonsuited shall be if heretofore nonsuited, then, bringing if the time limited for such expired during action shall pendency have such *4 suit, heirs, executors, plaintiff, the said his or her or ad- ministrators, case require, may as the shall commence a such judgment new action within one after reversed
493 against (Emphasis and not after.” given plaintiff, or the 1963, 83, 24a. Ill. added.) ch. savings in Roth whether the
The at issue was dispute filed within an action that had been statute applied dismissed by after the action was original one year The court for lack of jurisdiction. Federal district court 24 sav- that of section stated plain purpose [the “[t]he of litigation to facilitate the ings disposition statute] upon the merits and to avoid its frustration upon that merits.” 32 111. grounds (Roth, are unrelated the Thus, 2d at the court held that a Federal court’s dis- falls the jurisdiction missal of a case for lack within provision “nonsuit” statute. decision,
Following the Roth the statute was clause the term “nonsuit” including amended so that the was with clause: “or dropped, replaced action is dismissed or the voluntarily by plaintiff, action is want prosecution.” (Emphasis added.) (Ill. par. 24a.) Rev.
amended in statute was first discussed dic by v. (1978), tum Ill. 2d 78. Hupp Gray discussion of amended statute was dictum Hupp underlying cause of action held, arose under the statute prior and the amendment not applied would retroactively. Hupp’s had complaint been dismissed Federal district lack filing court for to his a cause of jurisdiction prior found, that action in an Illinois circuit The court court. case, to the but pre-1977 savings applied act not have applied amended would (post-1977) dis “since his action nonsuited and not voluntarily was missed.” 2d at 82. Hupp, Ill.
This court a case under the sav thereafter reviewed statute, in Conner v. ings Copley as amended Press, Conner, 2d Inc. 99 Ill. 382. In (1984), had filed defamation action defendant against, *5 494
the Federal District Court for the District Southern of Illinois. The court dismissed the case of because lack of subject jurisdiction. matter The thereafter with the in complaint, same the circuit allegations, court for Sangamon County. fil Although plaintiffs ing Sangamon would have within the al County been lowable if the period savings statute applied, defend ant filed a motion to court dismiss. circuit denied the motion. (Conner, 99 Ill. 2d at On 383-84.) to appeal court, this it was held (as that statute it ex isted at the time of not lawsuit) would to apply case dismissed from Federal lack of for subject matter The court further that jurisdiction. noted “[d]is- lack missals for of are jurisdiction not dis voluntary ***, missals but are on dismissals the court another viz., Conner, ground, lack of 99 jurisdiction.” Ill. 2d at 387. Conner, Hupp and
During period between statute was amended to make the again “the action is aby United when applicable States District Court lack jurisdiction.” (Empha for of sis added.) (Ill. par. 24a.) (The Conner amended statute did not apply cause of action arose to The in underlying prior 1981.) presents stant case court with first its opportunity to review the revised statute. The in the appellate instant held case the amendment had effect of Roth. Conner Ill. limiting reviving 3d at App. of reasoning appellate court was stated as follows: Roth,
“In words of ‘it is illogical Justice Schaefer to assume that the meant to legislature prevent hardship nonsuit, of a but not in of dismissal for case Roth, 203 jurisdiction.’ want of Ill. 2d at N.E.2d at 416. juris lack of court for in Federal ‘dismissed
Substitute ‘lack of ‘nonsuit,’ and substitute place diction’ in Justice jurisdiction.’ ‘dismissal for want of venue’ for read, illogical ‘it is then can be Schaefer’s statement hardship prevent meant to legislature assume that jurisdic for lack in Federal court the case of [dismissal in that of dismissal tion], venue].’ not but [lack the stat the fabric of damage no reading does That 3d at 893. ute.” 200 Ill. free Roth, and its court’s reliance
The appellate *6 statement, are in Justice Schaefer’s of terms substitution the in this opinion, noted earlier As has been misplaced. uti Roth was decided as it existed when statute savings has legislature “nonsuit.” The lized the term general twice, removing notably since amended the statute in its language and substituting specific term “nonsuit” 24a, 83, par. ch. Ill. Rev. place. Compare Ill. with written, spe- it is now is statute, very as court stated in Conner:
cific and clear. As this whose plaintiff, thus allows a savings statute] “[The specified grounds, action has been dismissed original limitations again the statute of though to file an action specified If the was on one of the has run. dismissal effect, a new limitations provides, the statute grounds, from the date will extend at least one period which 385.) at (Conner, 99 Ill. 2d of the dismissal.” Roth, ambiguous, deleted legislature Following and in- statute term “nonsuit” from the general The sole in its language place. serted very specific of the is the insertion since Conner change for lack of juris- dismissal a Federal grounds below, in his dissent stated Chapman diction. As Justice have in- legislature may we feel may “[w]hile venue if it had for improper to include dismissals tended the legislature what them, about feelings occurred to *** statutory are not a basis proper have done might 496 J.,
construction.” 3d at Ill. dis (Chapman, senting). inferred, it plaintiff argues that can be under case,
facts of this district since Federal judge found to venue be he must have also found improper, jurisdiction This confuses lacking. argument of jurisdiction and venue. The concepts rules governing personal jurisdiction are distinct and different from venue. is Venue Federal district where all proper the defendants reside or where arose. claim U.S.C. §1391(b) contrast, In (1988).) personal jurisdiction or whether not an or individual is amenable to entity process in accordance the statutes the State or with Scul- district where the court hearing (See the case sits. lin Co. v. Ry. Corp. (8th Steel National Utilization Cir. 1982), short, 676 F.2d In asks this second-guess (without a Federal district judge record) benefit full as to his decision that a cause venue, of action should be dismissed for improper rather than lack of This court will not jurisdiction. and, such given the record before engage speculation, us, we the sole for the only can assume that basis Fed- eral dismissal of this case was Venue. judge’s improper *7 or
Whether not it be to good public policy leg- would include a district Federal court’s dismissal a islatively cause of action on the venue as an ad- improper basis ditional is this savings statute condition not before court. legislature. That is an issue for the The amendment to act, the from Federal for lack of adding dismissals is and clear. jurisdiction, very specific, very Although Conner amendment would the outcome change case it been in would not had it court’s place, change or of the statute. The reasoning analysis sav- underlying statute, exists, as it now is a ings plain, unambiguous statute, it is to the circumstances of the and inapplicable case. instant this court to rule that
The defendant also asks filed his claim in Federal district court bad faith, of the stat savings thereby preventing application 862.) ute. White v. Tucker 53 Ill. 3d (See (1977), Since we find that the statute does not apply case, it not to determine or not necessary is whether action was filed in faith. original bad of the For the reasons the foregoing judgments ap- reversed, and circuit courts are and the cause pellate remanded to the circuit court directions to dismiss with the plaintiff’s complaint. reversed;
Judgments cause remanded with directions. BILANDIC, JUSTICE dissenting: I must dissent respectfully result reached substance, exalts form over majority disregarding the remedial nature of the statute and its status as single provision within entire Code of Civil Pro- cedure.
The Code of Civil Procedure and its predecessor, Act, Civil Practice were enacted to eliminate technical pitfalls and encourage procedure substan whereby tive could be a minimum rights determined with of delay, and v. technicality (Skolnick (1964), Martin expense. 55, Ill. 2d This 59.) court has early recognized provisions several contained within the Code of Civil Procedure (and its should construed to predecessor) be gether in of this light general and so purpose philosophy, as to give effect to the main intent of the legislature. (Johnson v. (1954), 561, Indeed, Moon 3 Ill. 2d it is direction of the express legislature, contained sec tion construed, Act shall “[tjhis be liberally 1— to the end that controversies may speedily finally determined to the according rights substantive Ill. Rev. Stat. parties.”
The defendants allegedly libeled in 1986. Plaintiff filed a timely complaint in the United States District Court for the Eastern District of (Fed Missouri eral court). Defendants were promptly served with pro cess and a of plaintiff’s and copy complaint did in fact appear before court. (Presumably, appearance was a general, rather than a limited, special appear ance.) Defendants motioned the court for dismissal on two grounds, lack of jurisdiction and improper venue. The Federal judge their motion granted and dismissed the action against defendants on the basis of improper venue. This constitutes an involuntary dismissal of plain tiff’s action on grounds other than an adjudication on the merits. R Fed. Civ. P. 134 Ill. 2d 273. 41(b); R.
Plaintiff refiled the 30, 1988, libel action on March the circuit court of Christian County, Illinois. This was within one after the year the dismissal order in entry the Federal action. Defendants moved to dismiss plain tiff’s State court action because the alleged libel oc curred in 1986 and, therefore, case is barred plaintiff’s one-year statute of limitations for libel actions. Ill.
Plaintiff the action argues was timely be- cause the Federal case was commenced within one year of the libel. This State action was commenced within one Therefore, dismissal of the Federal case. this case is a continuation of merely the Federal action. contend, Defendants and the agrees, majority cannot abe continuation of the Federal case Federal case was not dismissed “for lack of jurisdiction” but for lack of venue. The reasons that if the majority legislature wanted to save action it could have plaintiff’s written “lack of venue” into section 13—217. It chose so; not to do therefore action cannot plaintiff’s be saved because of his mistaken in the Federal I filing court. dis- agree. sav (the section 13—217 focuses majority only *9 man the liberal construction statute), disregarding
ings has al This court 1—106 of the Code. dated section by of the savings purpose determined that plain ready of litigation upon the disposition statute is “to facilitate frustration upon grounds the merits and to avoid its Assur v. Northern (Roth are unrelated to the merits.” ex ance Co. (1964), 32 Ill. 2d Justice Cardozo in a New York statute construing pressed philosophy similar to statute: our diligent to the suitor designed
“The statute is to insure judgment in he a right hearing to a court till reaches Its is not to purpose on the merits. broad and liberal impor away by any frittered narrow construction. that, aid, liti invoking judicial tant is a consideration gant adversary present notice to his of a gives timely *** purpose rights to maintain his before the courts. nothing There is reason of the rule that calls for a respect distinction of error in consequences between of jurisdiction consequences of the of the court and the Roth v. any respect rights.” other error of a suitor’s 46-47, citing (1964), Northern Assurance Co. 32 Ill. 2d 533, 539, 109 City (1915), Gaines v. New York N.Y. of N.E.594, 596. Likewise, no case, in the instant it is of consequence error was one of venue rather than plaintiff’s juris- case, no has visited on the diction. In either harm been notice, in a man- defendants. were on They put timely ner, of claim. The determination Fed- plaintiff’s outset, eral court was not on the merits. At the very *** Code reminds us that it must be construed “liberally This rights parties.” to the substantive according nar- by any “liberal is not to be frittered purpose away row construction” section erected an artificial wall between majority State court system.
Federal our system files in the Federal if a system, plaintiff Within the venue, wrong United States district “may transfer such case district or division in which it any could have been U.S.C. brought.” (1988).) 1406(a) § Within our State action shall abate or be system, “[n]o because commenced venue if wrong there is a venue to which the cause be transferred.” proper may (Il ch. 110, Rev. 104(a).) l. 2— Both have mechanisms systems instituted ensure that a litigant, error procedural selecting venue, is not from prevented obtaining disposition the merits of his cause.
In bar, the case at denied opportunity of a trial on the he merits of his action because selected venue the Federal and then refiled wrong system *10 the same action in the State hold- system. majority’s frustrate, to ing only further, serves rather than the pur- and remedial nature of our stat- pose, philosophy ute. its construction justifies narrow of sec- majority
tion 13—217 if the to by stating legislature intended save actions filed in the venue it could have wrong easily added to “lack venue” section What the ma- is that legislature overlooks same was also jority aware and construction be purpose placed the entire Code of Civil Procedure when it enacted sec- legislature tion 1—106. It also overlooks the fact that was aware of fact it saved actions filed already it enacted section 2—104. It wrong venue when did not saved in section 13—217. have again
I would therefore affirm the judgments appel- late court and the circuit court of Christian County further consistent proceedings remand cause with the views herein. expressed CLARK in this dissent. joins
JUSTICE