Butchas v. Metro. State Bank

• Decision Date: 08 February 1930
• Docket Number: No. 19685.,19685.
• Citation: 337 Ill. 612,169 N.E. 747
• Parties: BUTCHAS v. METROPOLITAN STATE BANK.
• Court: Illinois Supreme Court

337 Ill. 612

169 N.E. 747

BUTCHAS

v.METROPOLITAN STATE BANK.

No. 19685.

Supreme Court of Illinois.

Dec. 20, 1929.

As Modified, on Denial of Rehearing, Feb. 8, 1930.

Error to Third Branch Appellate Court, First District, on Appeal from Municipal Court of Chicago; H. G. Immenhausen, Judge.

Garnishment proceedings by Anton M. Butchas against the Metropolitan State Bank. Judgment discharging the garnishee was affirmed by the Appellate Court, and the plaintiff brings certiorari.

Affirmed.

Pines, Morse & Stein and John B. Borden, all of Chicago (Clarence T. Morse, of Chicago, of counsel), for plaintiff in error.

Frank A. Ramsey, of Chicago (Ernest Saunders, of Chicago, of counsel), for defendant in error.

DUNN, J.

This case was a proceeding in garnishment in the municipal court of Chicago, in which the garnishee was discharged and the garnishing creditor appealed to the Appellate Court, where the judgment against him was affirmed. A writ of certiorari was issued on the petition of the appellant to bring up the record for review.

The plaintiff in error, Anton M. Butchas, recovered a judgment for $1,821 in the municipal court of Chicago on April 18, 1928, against Frank L. Savickas, and caused a garnishee summons to be issued and served upon the Metropolitan State Bank, requiring it to answer in regard to property belonging to Savickas in its possession. Interrogatories to be answered by the defendant as garnishee were also filed, consisting of five printed interrogatories, in the usual of form in such cases, concerning any property of the judgment debtor held by the garnishee. The questions in the printed form were complete and sufficient, except that a blank was left in each question for the name of the judgment debtor whose property was inquired about, and the plaintiff in error failed to fill these blanks. The summons, together with a copy of the interrogatories, was served on the defendant on April 19, and the appearance of the defendant was entered by its attorney on April 27.

The case was of the first class, and rule 4 of the municipal court provides that every Tuesday the judge assigned to that duty shall call the cases of the first class in which service, either by publication or summons, has been made in due time for default, and that when the cases are called defaults may be taken and judgments entered where parties are entitled thereto. Rule 34, with reference to motions, provided that notice of all motions, together with all copies of papers in support thereof, must be served on the opposite party or his attorney of record, and that such notice must be in writing, stating the motion, time, and place of hearing, and designating the judge before whom the motion is to be made. Where a party is in default for want of appearance, no notice is required, except upon order of the court. The cause was listed to be called for the first time on Tuesday, May 8, and on that day an order was entered sustaining the garnishee's motion to be discharged. On May 24 the plaintiff made a motion to vacate this order of May 8, but the court overruled the motion. On June 6, as appears by the bill of exceptions, the plaintiff in error filed a motion in writing to set aside the order entered on May 24, overruling the plaintiff's motion to set aside the order of May 8 dismissing the garnishment proceeding, and to enter an order setting aside the order of dismissal entered on May 8, to allow the plaintiff to file amended interrogatories instanter, to enter a rule on the garnishee to answer such interrogatories, and to set the garnishment proceeding for trial on a day to be thereafter fixed.

On the hearing of this motion on June 11, affidavits were filed by the respective parties, from which it appears that on May 8, a few minutes before the opening of court, a clerk from the office of the attorneys for the plaintiff went to the courtroom of the judge on whose call the case was listed, and, examining files in the case, found that the garnishee had filed an appearance but no answer. He arranged with the clerk to have the judge enter an order giving the garnishee 10 days' time to answer and setting the case for June 12, 1928. The minute clerk made a notation accordingly opposite the case in the list of cases to be called in his book, and the attorney's clerk went to other courts, where he had other cases to attend to, and was not present at the call. When the case was called, the minute clerk said, ‘Apperance of garnishee and ten days.’ The attorney of the garnishee, who was present, stated that he was about to make a motion, as he thought a garnishee was required to make whatever defense he might have, so that the court might pass upon it, in order to avoid becoming liable to the judgment debtor for failure to properly defend. He then stated: ‘These interrogatories are not properly filled out, and therefore the jurisdiction of the court is questioned because of failure to comply with rules; and, furthermore, the summons served upon the garnishee does not bear the indorsement required by the rules of this court, giving the address and the occupation of the judgment debtor and the amount and date of the judgment.’ The interrogatories and summons served upon the garnishee were then handed to the trial judge, who said: ‘If the plaintiff is not here to answer the trial call, I cannot do anything but discharge the garnishee. Upon this showing the garnishee is discharged. These interrogatories...