Bogden v. Milauckas
| Decision Date | 24 February 1942 |
| Docket Number | Gen. No. 9322. |
| Citation | 40 N.E.2d 91,313 Ill.App. 311 |
| Parties | BOGDEN v. MILAUCKAS. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Sangamon County; L. E. Stone, Judge.
Suit by Peter Bogden against George Milauckas, also known as George Miles, to revive a judgment which was assigned to plaintiff by the judgment creditor and to recover the amount due as such assignee. From a judgment for plaintiff, defendant appeals.
Affirmed. Coy N. Overaker and S. S. DuHamel, both of Springfield, for appellant.
Walter T. Day, of Springfield, for appellee.
On January 14, 1925, one Marie Bamie, later married and known as Marie Patsie, obtained a judgment in a tort action against the defendant-appellant, George Milauckas, later known by reason of change of name, as George Miles, in the sum of $3,500, and costs of suit.
From this judgment George Milauckas appealed to this court. The appeal bond was fixed at the sum of $4,500, and at the request of appellant Milauckas, the appellee here, Peter Bogden, signed the appeal bond as surety, conditioned to pay the judgment if Milauckas did not pay the same.
On November 27, 1925, this Court by remittitur reduced the judgment to the sum of $1,500, and affirmed the judgment for that amount.
This suit was docketed in the Circuit Court of Sangamon County as Gen. No. 42037, and the judgment was recorded in Judgment Docket Z at page 263 (line 1).
The plaintiff in that action, Marie Bamie, caused two executions to be issued and same were served on Milauckas and returned “Nulla Bona”, Milauckas filing as to each execution a Debtors Schedule. Marie Bamie Patsie then instituted an action of debt upon the appeal bond against Milauckas, the principal and Peter Bogden, the surety. On February 8, 1926, she obtained judgment against both defendants in the sum of $4,500 debt with damages of $1,580.70. This suit bore the general number of 44926 in the Sangamon County Circuit Court and the judgment therein was recorded in Judgment Docket Z, apparently under two alphabetical headings; one under letter “B” at page 37 against “Peter Bogden, et al”, and one under the letter “M” at page 263 (line 6) against “George Milauckas, et al.”
On May 7, 1926, Marie Bamie Patsie caused an execution to be issued on the debt judgment, and the same was served on Peter Bogden, the next day demanding of him the sum of $1,568.70, and costs. Peter Bogden then made arrangements to pay the debt judgment but in doing so secured from Marie Patsie an assignment of the tort judgment, dated May 12, 1926, and acknowledged by Marie Patsie on May 17, 1926. This assignment purported to “sell, assign, transfer and set over” to Peter Bogden, all the right, title and interest of Marie Patsie, in and to the tort judgment, including the right to “ask, demand, receive, issue execution or other writs, and take all lawful ways for the recovery of the money due, or to become due”, etc. It further conveys and assigns to Bogden “the judgment, and any and all sums of money that may be obtained by means thereof, or on any proceeding to be had thereupon”, and further stipulates that the assignor “will not collect or receive the same, or any part thereof, nor release or discharge the said judgment, but will allow and own all lawful proceedings therein”, etc.
On June 30, 1926, on judgment docket “Z” at page 37, indexed as follows: appears the following,
The appellee, Peter Bogden, has now instituted the present suit to revive the judgment, which he owns as the assignee of Marie Patsie, and to recover the amount due to himself as such assignee.
The complaint filed sets forth the foregoing facts and appellee bases his right of recovery on the following section of the Statute: Chapter 83, Section 24b (Limitations) Ill.Rev.Statutes, 1941, (Bar Ass'n, Ed.) which reads:
“Judgments in any court of record in this State may be revived by scire facias, or by ordinary civil action in lieu of scire facias as provided by the Civil Practice Act, and all existing and future amendments thereto, or a civil action may be brought thereon within twenty years next after the date of such judgment and not after;”
A motion and affidavit for summary judgment were filed with the complaint.
The appellant, George Milauckas, filed an answer, affidavit and four special defenses. They admit the facts as set forth in the complaint but deny the effect of such facts.
The separate and special defenses are briefly the following:
1. That the satisfaction of the judgment in debt by Marie Bamie, on June 30, 1926, was in full for both of the debt, judgments against Milauckas and Bogden and the first judgment, or tort judgment, thereby became and was extinguished; that by reason of such satisfaction the appellant is not now indebted to anyone, and that there is no judgment existing to be revived or upon which collection can be made.
2. That accordingly Peter Bogden took and received nothing by the assignment of the original judgment from Marie Bamie.
3. That the five-year statute of limitations bars any action for subrogation or to force subrogation from Marie Bamie.
4. That the five-year limitation period also bars any action to revive and collect such judgment or any interest thereon.
The Court heard the cause upon the motion for summary judgment and entered judgment against the defendant-appellant and in favor of the plaintiff-appellee in the sum of $2,723.55, from which judgment appellant appeals.
Appellant has cited a number of cases from foreign jurisdictions and from Illinois in support of his first and second defenses; that Marie Bamie obtained two judgments against appellant to secure her damages sustained...
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