Long v. Duggan-Karasik Const. Co.

• Decision Date: 17 December 1974
• Docket Number: DUGGAN-KARASIK,No. 58502,58502
• Citation: 323 N.E.2d 56,25 Ill.App.3d 236
• Parties: Richard Alan LONG, Plaintiff-Appellee, v.CONSTRUCTION COMPANY, Defendant, and Bituminous Casualty Corporation, Garnishee-Appellant.
• Court: United States Appellate Court of Illinois

Page 56

323 N.E.2d 56

25 Ill.App.3d 236

Richard Alan LONG, Plaintiff-Appellee, v. DUGGAN-KARASIK CONSTRUCTION COMPANY, Defendant and Bituminous Casualty Corporation, Garnishee-Appellant.

No. 58502.

Appellate Court of Illinois, First District, Second Division.

Dec. 17, 1974.

Leo J. Doyle, Jr., and Leon M. Tarpey, Jr., Chicago, for defendant-garnishee.

Nat P. Ozmon & Associates, Ltd., Chicago (Nat P. Ozmon and Joseph Riden, Chicago, of counsel), for plaintiff-appellee.

LEIGHTON, Justice.

This appeal arises from a garnishment proceeding. Plaintiff-appellee Richard Alan Long sued Duggan-Karasik Construction Company in tort and obtained a judgment for $175,000. Duggan-Karasik appealed but did not obtain a stay as provided in Supreme Court Rule 305. ¹ While that appeal was pending, Long served a garnishment affidavit and interrogatories on garnishee-appellant Bituminous Casualty Corporation, which answered and admitted that from a policy of insurance it had issued, there was in its possession the sum of $82,733.20 which could be applied in partial satisfaction of Long's judgment against Duggan-Karasik. Based on this answer, the trial court entered a garnishment judgment in that amount; and Bituminous perfects this appeal. The issue presented is whether Long's garnishment was premature because Duggan-Karasik, although it had not obtained a stay, was appealing the underlying judgment against it.

We affirm the garnishment judgment against Bituminous. In doing so, we reject the argument that Ancateau v. Commercial Casualty Insurance, 318 Ill.App. 553, 48 N.E.2d 440 states the rule that controls this case. In Cuttone v. Peters, 67 Ill.App.2d 1, 6, 214 N.E.2d 499, we held that the interests of a judgment creditor in a speedy and sure remedy by which he can satisfy his judgment must come before the interests of an insurance company. We took occasion to observe that in the event there is an effective garnishment and later the underlying judgment is set aside, '* * * the insurance company surely has a right of action against a plaintiff for recovery of any money it has paid.' (67 Ill.App.2d 1 at 6, 214 N.E.2d at 502.) However, in this case, the underlying judgment was not set aside. To the contrary, on October 21, 1974, this court affirmed Long's judgment against Duggan-Karasik. See Long v. Duggan-Karasik Construction, Ill.App., 320 N.E.2d 553.

In Colon v. Marzec, 116 Ill.App.2d 278, 253 N.E.2d 544, we held that a garnishment while an underlying judgment without a stay was being appealed was not premature. Cuttone and Colon are decisions of this court which indicate a trend away from the philosophy expressed in Ancateau, a decision which held premature a garnishment action based on a judgment still...