Heller v. Lee

• Decision Date: 05 February 1985
• Docket Number: No. 3-84-0410,3-84-0410
• Citation: 85 Ill.Dec. 896,474 N.E.2d 856,130 Ill.App.3d 701
• Parties: , 85 Ill.Dec. 896 Michael W. HELLER and Joyce M. Heller, Plaintiffs-Appellees, v. Clifford G. LEE, Jr., Harvey A. Slepian, Sharon L. Slepian, et al., Defendants- Appellants.
• Court: United States Appellate Court of Illinois

Page 856

474 N.E.2d 856

130 Ill.App.3d 701, 85 Ill.Dec. 896

Michael W. HELLER and Joyce M. Heller, Plaintiffs-Appellees, v. Clifford G. LEE, Jr., Harvey A. Slepian, Sharon L. Slepian et al., Defendants- Appellants.

No. 3-84-0410.

Appellate Court of Illinois Third District.

Feb. 5, 1985.

Clem & Triggs, Peoria, for defendants-appellants.

Michael W. Heller, Peoria, for plaintiffs-appellees.

HEIPLE, Presiding Justice:

On August 16, 1982, the circuit court of Peoria County entered a $44,281.85 judgment in favor of the plaintiffs. The defendants appealed and we affirmed. After leave to appeal was denied by our Supreme Court, the trial court granted the plaintiffs' motion to release bond on appeal. The bond consisted of a deed to real property and a $15,000 certificate of deposit. The plaintiffs applied the certificate of deposit against the judgment and instituted garnishment proceedings against the defendants to recover the deficiency. Pursuant to section 12-183(g) of the Code of Civil Procedure (Ill.Rev.Stat.1983, ch. 110, par. 12-183(g)), the defendants filed an original and amended petition for release from judgment and for return of excess bond. The defendants appeal the dismissal with prejudice of their amended petition.

Section 12-183 supplants the former writ of audita guerela and allows a judgment debtor to obtain a release upon a showing that the judgment has been satisfied. The plaintiffs argue that the defendants' section 12-183 petition was properly dismissed because it did not plead facts sufficient to show that the judgment was satisfied.

Generally, the only way in which a money judgment can be satisfied is by payment in money unless the parties agree otherwise. (ADA Enterprises Inc. v. Thompson (1965), 26 Wis.2d 269, 132 N.W.2d 244; 47 Am.Jur.2d Judgments § 985.) Since the defendants rely primarily upon a transfer of real property rather than cash as satisfaction of the judgment they must plead facts sufficient to show that the plaintiffs agreed to accept real estate in lieu of cash.

The defendants' petition alleges that the appeal bond, consisting of the certificate of deposit and real property appraised at $50,000 was sufficient to satisfy the judgment. The defendants expected that the plaintiffs would accept the release of bond in satisfaction of the judgment. The plaintiffs allegedly took title to the property instead of exercising their option to compel a sheriff's sale. Finally, the defendants stated that the plaintiffs never indicated that release of the appeal bond would not satisfy the judgment.

The defendants have alleged only that they expected the property transfer to satisfy the judgment. They have failed to allege facts which show that the plaintiffs shared that expectation. The appraised value of the property is speculative and irrelevant unless the defendants show that the plaintiffs agreed to accept the property at its appraised value instead of cash. The fact that the plaintiffs never indicated that the property transfer would not satisfy the judgment proves nothing. Similarly, the fact that the plaintiffs elected to petition for release of property instead of compelling a sheriff's sale is not evidence of an agreement to accept the property in satisfaction of the judgment. The plaintiffs were entitled to petition for release of the appeal bond in order to obtain partial cash payment via the certificate of deposit. The plaintiffs did not give up...