¶1dissenting.
¶2The order of tbe Circuit Court of Kane County dismissing tbe cause should be reversed. Tbe complaint states a cause of action and an order dismissing a good complaint is erroneous. I agree that this is not a case for declaratory judgment and agree that the trial court should have declined to grant declaratory relief. We should reverse the order dismissing the complaint, so that it is clear that a trial court has no right to dismiss a good cause of action. Then we should enter a decree here declining to grant declaratory relief without prejudice to the plaintiffs to plead the release in the original action. Burgard v. Mascoutah Lumber Co., 6 Ill.App.2d 210, 218, 127 N.E.2d 464; Frazier v. City of Chattanooga, 156 Tenn. 346, 1 S.W. 2d 786; Richardson v. Danson (Wash.), 270 P.2d 802.
¶3It seems to me to be more than just a play on words or an exercise in dialectics to point out what I consider to be the error of the trial court and the majority.
¶4True, we reach the same result by our diverse paths. However, I am fearful that the majority will be understood as having approved the dismissal of an action when there was no basis for the dismissal. There is a real distinction between dismissing a suit on motion and declining to grant declaratory relief. In the first instance the question is a legal one and in the latter situation the action lies in the sound discretion of the court. We must not be understood as approving the dismissal of a cause in the discretion of the trial court.