Kaiser-Ducett Corp. v. Chicago-Joliet Livestock Marketing Center, Inc.
Decision Date | 17 July 1980 |
Docket Number | KAISER-DUCETT,No. 80-16,CHICAGO-JOLIET,80-16 |
Citation | 41 Ill.Dec. 651,86 Ill.App.3d 216,407 N.E.2d 1149 |
Court | United States Appellate Court of Illinois |
Parties | , 41 Ill.Dec. 651 CORP., Plaintiff, v.LIVESTOCK MARKETING CENTER, INC., et al., Defendants. CHARLES O'BRIEN & SON CONSTRUCTION CO., INC., Intervening Judgment Creditor- Appellant, v.CORPORATION et al. by George P. Troha, Receiver-Appellee. |
Hynds & Rooks, Morris, for intervening judgment creditor-appellant.
James E. Egan, McSteen, Phelan & Egan, Joliet, for receiver-appellee.
This appeal is brought by an intervening judgment creditor, Charles O'Brien & Son Construction Co., Inc., from an order entered by the Circuit Court of Will County in a mechanics lien foreclosure suit initiated by the judgment debtor, Kaiser-Ducett Corporation, against the defendants, Chicago-Joliet Livestock Marketing Center, Inc., and the Central National Bank. By that order, the trial court directed the receiver, who had been appointed to hold an amount tendered to him by Chicago-Joliet Livestock in settlement of the suit by Kaiser-Ducett, to distribute the funds on a pro rata basis to the several judgment creditors who had filed claims, without priority being given to any of the claims.
On October 26, 1978, attorneys for Chicago-Joliet Livestock and intervening petitioner D. Koerner, Inc., presented a "Petition for Implementation of Proposed Settlement of Modified Judgment Order and For Appointment of Liquidating Receiver for Assets of Kaiser-Ducett Corporation" which was tendered as a proposed settlement of the entire cause of action. Among other things, the petition sets forth the numerous competing creditors' claims and turn-over orders entered by various courts in citation to discover assets proceedings and stated further that Chicago-Joliet Livestock was willing to tender the sum of $160,000.00 in full settlement of the modified judgment order entered on December 20, 1977, but was unable to determine to whom such sum should be disbursed and recommended to the court that a receiver be appointed to receive the settlement amount and to disburse the funds in the amounts and in accordance with the priorities to be determined by the trial court.
On November 13, 1978, an order was entered in the trial court appointing George P. Troha as receiver to determine a plan of disbursement and directing him to collect the assets of Kaiser-Ducett, to notify creditors to tender claims, and to draw up and recommend a plan of distribution of Kaiser-Ducett assets in accordance with legal priorities, proper prorations, and upon proper notice to creditors filing claims and the parties to this cause.
On January 25, 1979, after hearing the recommendations of the receiver and noting that no objections were filed by the creditors as to the proposed settlement, the trial court authorized the receiver to pay D. Koerner, Inc., $36,000.00 and Shaheen, Lundberg, Callahan & Burke $80,000.00 in full settlement of their respective claims, and ordered that March 31, 1979, be set as the deadline for all creditors to file their claims with the clerk of the court. Additionally, the trial court ordered the receiver to provide the court, on or before March 31, 1979, with a suggested plan for distributing the remaining funds of approximately $44,000.00, taking into consideration all legal priorities and after satisfaction of the expenses of the receivership.
On January 8, 1979, the receiver mailed to the claimants a copy of the draft order subsequently entered on January 25, 1979. In his letter of January 8, 1979, the receiver stated that he would appreciate any suggestions and/or memoranda of law in regards to the priorities and distribution of the remaining funds. In response thereto, a number of the judgment creditors filed memoranda and/or appeared in court to state their views as to the proper rule to be applied in disbursing the funds.
Based upon the claims and supporting documents filed with and examined by the court, the trial court, on October 22, 1979, found in its order that no judgment creditor had taken the steps necessary to create a priority of one judgment creditor over another. By order of the trial court, dated December 3, 1979, the receiver was directed to distribute the funds in its hands to the numerous judgment creditors on a pro rata basis.
Of all the judgments of the creditors, O'Brien's was the oldest in time, having been entered on December 3, 1975, in the Circuit Court of Grundy County. Therefore, it is argued by this appellant that the appropriate rule for determining the priority of judgment liens is "first in time is first in right" and O'Brien should be fully satisfied before any funds are applied to satisfy any of the other judgment creditors.
Clearly, if a lien has been perfected, the lien of a senior judgment is superior to that of a junior one. (See, Rogers v. Dickey (1844), 6 Ill. 636). However, while a judgment may become a lien against real property if evidence of the judgment is filed in the office of the recorder of deeds in the county wherein the property is located (Ill.Rev.Stat.1977, ch. 77, P 1), such a judgment can not become a lien against personal property...
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