Mederacke v. Becker, Gen. No. 11235

• Decision Date: 08 October 1970
• Docket Number: Gen. No. 11235
• Citation: 263 N.E.2d 257,129 Ill.App.2d 434
• Parties: Helen MEDERACKE, Plaintiff-Appellant, v. William J. BECKER, Dorothy P. Becker, Lina Hauschild, Arthur Hauschild, and Cletus German, Administrator with the Will Annexed of the Estate of Richard Mederacke, Deceased, and Elda Naggi, Defendants, William J. Becker and Dorothy P. Becker, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 257

263 N.E.2d 257

129 Ill.App.2d 434

Helen MEDERACKE, Plaintiff-Appellant, v. William J. BECKER, Dorothy P. Becker, Lina Hauschild, Arthur Hauschild, and Cletus German, Administrator with the Will Annexed of the Estate of Richard Mederacke, Deceased and Elda Naggi, Defendants William J. Becker and Dorothy P. Becker, Defendants-Appellees.

Gen. No. 11235.

Appellate Court of Illinois, Fourth District.

Oct. 8, 1970.

Sprague, Sprague & LeChien, Belleville, for plaintiff-appellant; Thomas A. LeChien, Belleville, of counsel.

McGrady, Madden & Watson, Gillespie, for defendants-appellees; D. A. McGrady, Gillespie, of counsel.

CRAVEN, Presiding Justice.

We are again called upon to review part of a continuing controversy between these parties litigant. Actually, this litigation had its inception in 1947 and has been tenaciously pursued in various manners since that time. We had occasion to consider this matter, and the opinion is to be found at 56 Ill.App.2d 128, 205 N.E.2d 519 (4th Dist.1965).

The current controversy relates to a decree entered in May of 1963, which was in the form of a net judgment in favor of the plaintiff, Helen Mederacke, and against the defendants in the amount of $33,409.42. That judgment was affirmed by this court in the cited opinion. Following that affirmance, a proceeding initiated by a citation to discover assets was instituted, and after various and sundry hearings and apparent ascertainment by the plaintiff that the defendants had insufficient assets to satisfy the judgment, and after various efforts for contempt citation and the issuance of orders restraining the transfer of property, the parties entered into a settlement agreement. An order was entered in the circuit court approving that agreement and dismissing the citation proceedings. That agreement provided that the parties desired to settle the judgment and to that end agreed that the defendants would pay to the public the sum of $15,000, that the plaintiff would enter a partial satisfaction of judgment acknowledging the receipt of the $15,000, and that the defendants would execute a quit-claim deed to certain real estate and pay the sum of $1,784.64 to plaintiff's attorney, $1,000 on or before May 1, 1969, and the remaining sum of $784.64 on or before May 1, 1970. Certain proceedings in the circuit court of St. Louis, Missouri, were to be dismissed without prejudice, and the agreement recited that time was of the essence.

Thereafter, and predictably in view of the history of litigation, a petition was filed asking that the defendants be found in contempt in that there was an alleged failure to comply with the terms and conditions of the payment of the $1,784.64. Subsequently a further petition was filed reciting that the sum had not been paid as agreed and seeking to revive in full the net judgment as set out in the decree of May 2, 1963.

It appears that the $15,000 payment was made as agreed. It further appears that the $1,784.64 payment was not made in exact conformity with the time schedule but that it was in fact paid in full and accepted prior to May 1, 1970. Thus, apparently part of the payment was late and part of it was early.

It is the essence of the plaintiff's contention in this court that the nonpayment in accordance with the terms and conditions of the agreement required that the trial court reinstate the full judgment. The trial court refused, observing that this litigation, like all litigation, had to end sometime and someplace and that the performance in full of the settlement agreement was now complete and the case would be considered to be concluded. This appeal is from that order.

Plaintiff relies upon the case of Wright v. Federal Wrecking Co. (Appeal of Goldman), 331 Ill.App. 231, 72 N.E.2d 16 (1st Dist.1947). In that case a judgment based upon an award of the Industrial Commission in an amount in excess of $4,000 was sought to be compromised or satisfied. Upon the payment of some $350 there was a controversy between the parties as to whether the $350 was a part-payment or in full satisfaction. The court refused to hold the judgment to be satisfied and stated (73 N.E.2d at 19):

'* * * The general rule is that in the absence of a statute providing otherwise, a judgment is not discharged by a part...