Federal Loan Corp. v. Harris
| Decision Date | 08 January 1974 |
| Docket Number | No. 57174,57174 |
| Citation | 308 N.E.2d 125,17 Ill.App.3d 49 |
| Parties | FEDERAL LOAN CORPORATION, a corporation, Plaintiff-Appellant, v. Willie HARRIS, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Olson & Hanelin, Chicago, for plaintiff-appellant; J. W. Olson, Chicago, of counsel.
No appearance and no brief filed for defendant-appellee.
This appeal arises from an order denying plaintiff-appellant's motion for further supplementary proceedings under Supreme Court Rule 277 (Ill.Rev.Stat., 1969, ch. 110A, par. 277), and denying plaintiff-appellant's motion for the issuance of an alias writ of attachment for contempt against the defendant.
On 12 July 1965 plaintiff Federal Loan Corporation obtained a judgment by confession in the amount of $1000 against the defendant, Willie Harris. On 28 March 1969, a citation to discover assets was requested by and issued to plaintiff. Defendant was personally served with the citation on 7 April 1969, but failed to appear on the day assigned for the hearing. Thereafter, a rule to show cause why defendant should not be attached and punished for contempt was entered on 13 May 1969 and personally served on defendant on 2 June 1969. Defendant failed to appear and a writ of attachment based on probable cause that defendant had committed a contempt was issued on 29 July 1969. The writ of attachment was returned 'not found' on 2 November 1969.
Thereafter, on 3 December 1971, plaintiff filed a motion for further supplementary proceedings under Rule 277(a). The lower court found that the affidavit in support of the petition did not set out facts to indicate that there was reason to believe that defendant had property or income which plaintiff was entitled to reach (as required by Rule 277(a)), and denied the motion. Plaintiff then orally moved for the issuance of an alias writ of attachment on the prior citation proceeding. The court denied that motion on the ground Plaintiff appeals from both rulings. Defendant has neither filed a brief nor argued this case before this court.
that the prior citation proceeding had terminated under the provisions of Rule 277(f), because more than six months had expired since the service of the citation by which it had been commenced.
OPINIONThe first question for us to decide is whether it was error for the lower court to deny plaintiff's motion for further supplementary proceedings. Supreme Court Rule 277(a) (Ill.Rev.Stat., 1969, ch. 110A, par. 277(a)) requires, in part, that a motion for further supplementary proceedings be supported by an affidavit stating facts which give the judgment creditor reason to believe that the judgment debtor has property or income, the existence of which was not known to the judgment creditor during the pendency of any prior supplementary proceeding. The affiant must further state that the proceeding is sought in good faith to discover assets and not to harass the judgment debtor.
A general 'fishing expedition' for assets may be had only on the initial citation, which does not require any express leave or order of court. Ill.Rev.Stat., 1969, ch. 110A, par. 277(a). Thereafter, any later supplementary citation proceeding requires express leave and order of court, precisely because it requires the existence of facts giving the judgment creditor reason to believe that the judgment debtor has property or income which the judgment creditor is entitled to reach.
The motion in the case at bar on 3 December 1971 was denied because the affidavit supporting the motion contained no such facts whatsoever. Our examination of the affidavit discloses no 'fact' other than that the defendant had not been previously examined. This being the case, it is our opinion that the denial of the motion for further supplementary proceedings was proper.
We note that this judgment debtor has never in fact been examined in a citation proceeding. On the other hand, plaintiff let more than six months go by without securing successive 28-day extensions of the six-month period (the expiration of which terminates the citation proceeding), which extensions are available by...
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