Farmers State Bank of Lewistown v. Thomas

• Decision Date: 23 November 1983
• Docket Number: No. 3-82-570,3-82-570
• Citation: 119 Ill.App.3d 854,75 Ill.Dec. 344,457 N.E.2d 134
• Parties: , 75 Ill.Dec. 344 FARMERS STATE BANK OF LEWISTOWN, Plaintiff-Appellee, v. Donald R. THOMAS, Defendant-Appellant. and Donald R. THOMAS, Counter-plaintiff-Appellant, v. FARMERS STATE BANK OF LEWISTOWN, Counter-defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 134

457 N.E.2d 134

119 Ill.App.3d 854, 75 Ill.Dec. 344

FARMERS STATE BANK OF LEWISTOWN, Plaintiff-Appellee, v. Donald R. THOMAS, Defendant-Appellant. and Donald R. THOMAS, Counter-plaintiff-Appellant, v. FARMERS STATE BANK OF LEWISTOWN, Counter-defendant-Appellee.

No. 3-82-570.

Appellate Court of Illinois,

Third District.

Nov. 23, 1983.

David B. Barber, Springfield, for Donald R. Thomas. Gregg Grimsley, Vonachen, Cation, Lawless, Trager & Slevin, Peoria, for Farmers State Bank of Lewistown.

BARRY, Justice.

Plaintiff Farmers State Bank of Lewistown obtained a judgment by confession for $268,075 against its former president, defendant Donald R. Thomas, who had signed notes for several unsecured loans from plaintiff. Proceedings to confirm the confession of judgment were instituted by plaintiff to which defendant responded with a motion to vacate the judgment and dismiss the complaint. The trial court denied the defendant's motion with leave to file a motion to open the judgment under Supreme Court Rule 276 (Ill.Rev.Stat.1981, ch. 110A, par. 276).

Thereafter, defendant filed an answer, affirmative defenses, and a 12 count counterclaim which included, inter alia, claims for a set-off of funds and personal property belonging to him which were seized by plaintiff. Defendant alleged that the funds in three checking accounts, the contents of his safety deposit box, rare coins, foreign gold, and assorted documents and personal property were seized by plaintiff, and that he is also entitled to unpaid salary and dividends and other claims. Defendant requested a trial by jury on his claims.

Plaintiff filed a motion to strike the answer and affirmative defenses, a motion to dismiss the counterclaim, and a request that the judgment by confession be confirmed. After hearing arguments, the trial court ruled that plaintiff was entitled to have the judgment by confession confirmed but ordered that plaintiff be barred from using wage deduction proceedings to enforce the judgment. The court also stated that defendant was entitled to a trial on the counterclaim which was transferred to the jury division of the circuit court. During oral arguments before this court, both parties admitted that the counterclaim is still pending. Under Rule 276, it is a matter for the discretion of the trial court whether to allow the filing of a counterclaim; and if a counterclaim is filed, the trial court "to the extent justice requires may stay proceedings on the judgment by confession until the counterclaim is disposed of." Here the trial court refused to stay the proceedings on the...