Morris v. Beatty

• Decision Date: 13 September 1945
• Docket Number: No. 28245.,28245.
• Citation: 62 N.E.2d 478,390 Ill. 568
• Court: Illinois Supreme Court
• Parties: MORRIS v. BEATTY et al. (CHICAGO CITY BANK & TRUST CO., Garnishee).

390 Ill. 568

62 N.E.2d 478

MORRIS

v.BEATTY et al. (CHICAGO CITY BANK & TRUST CO., Garnishee).

No. 28245.

Supreme Court of Illinois.

May 23, 1945.

As Modified on Denial of Rehearing Sept. 13, 1945.

Appeal from Second Division, Appellate Court, First District, on Appeal from Municipal Court of Chicago; George L. Quilici, Judge.

Action by Benjamin B. Morris against Robert S. Beatty and another, wherein plaintiff recovered judgment and commenced garnishment proceedings against the Chicago City Bank & Trust Company. From a judgment of the Appellate Court, 323 Ill.App. 390, 55 N.E.2d 830, reversing a judgment of the Municipal Court discharging the garnishee, the garnishee appeals.

Judgment of the Appellate Court reversed, and judgment of Municipal Court affirmed.

Franklin J. Stransky and Rathje, Hinckley, Kulp & Sabel, all of Chicago (Joseph J. Sullivan and Chester W. Kulp, both of Chicago, of counsel), for appellant.

David I. Spark, of Chicago, for appellee.

MURPHY, Justice.

This case comes to this court from the Appellate Court pursuant to the granting of a petition for leave to appeal. The action is a garnishment proceeding which was started in the municipal court of Chicago.

The facts are not in dispute. In February, 1935, Benjamin B. Morris, herein referred to as plaintiff, obtained a judgment by confession in said municipal court against Robert S. Beatty and Myrtle G. Beatty for $2,457.93, and costs. After an execution was duly returned ‘no property found’ a garnishee summons was issued and served on Chicago City Bank and Trust Co. designated herein as the garnishee. Interrogatories in the usual form were filed, and on November 29, 1935, the garnishee filed its sworn answer. It was disclosed by the answer that Robert S. Beatty carried an account in the garnishee's bank which contained a balance of $82.35, that he also owed the bank on a note the sum of $3,100 and that said balance in the account had been applied on the indebtedness due on said note. The answer stated that the garnishee had ‘a contract for the rental of a certain safety deposit box to Robert S. Beatty and Myrtle G. Beatty, that it has no control over the contents of said box.’ The answer concluded with the usual allegation that it had no other rights, credits, choses in action, effects, estate, property or money in its possession belonging to either of the Beattys.

On November 26, three days before the garnishee's answer was filed, an order was entered staying all proceedings until further order of court. Following the filing of the garnishee's answer the matter was delayed by reason of a bankruptcy and reorganization proceeding in the Federal District Court. It appears that the bonds or obligations upon which plaintiff obtained judgment against the Beattys were in some way involved in such reorganization proceedings. During the pendency of the Federal proceeding, plaintiff was enjoined by order of that court from enforcing his judgment. Such stay order continued in effect until March 13, 1942, when it was dissolved.

On May 19, 1942, the garnishee filed a motion in the municipal court to be discharged. Five reasons were set forth in support of such motion, but due to the course which the cause took thereafter it is not necessary to comment on such grounds. The day the garnishee's motion to be discharged was filed, plaintiff made an oral motion to vacate the order of November 26, 1935. At the same time, plaintiff moved that a rule be entered on the garnishee to produce bank records and matters pertaining to the account of Robert S. Beatty, and papers in reference to the leasing of a safety-deposit box from the garnishee. All motions were ordered entered and continued, but the garnishee was ruled to file a petition in support of its motion within five days.

The garnishee filed its petition in accordance with the requirement of said rule and set forth various grounds in support thereof. The gist of the petition was that plaintiff was bound by the reorganization proceedings in the Federal court and that by reason of his participation therein, the pendency of such proceedings in the United States Circuit Court of Appeals and other matters, the order of the municipal court of November 26, 1935, should not be vacated. Plaintiff filed an answer to such petition, and for purposes here it may be stated that he joined issue on the facts alleged therein. Thereafter an order was entered which directed the garnishee to produce at the trial on the contest of the garnishee's answer all records, papers, documents, books and other writings of whatever kind or nature in its possession, custody or control, relating to the safety-deposit box or boxes, or to any account or accounts in the name of either of the Beattys. On March 30, 1943, evidence was heard and judgment entered discharging the garnishee. Plaintiff appealed to the Appellate Court where the judgment of the trial court was reversed and the cause remanded with directions to enter judgment against the garnishee. This appeal followed.

Plaintiff's motion to dismiss this appeal was taken with the case. In support thereof it is urged that the judgment of the Appellate Court is not final or appealable, that there is no certificate showing that the jurisdictional amount is involved and that the granishee's petition for leave to appeal does not comply with Rule 32, Ill.Rev.Stat.1943, c. 110, s 259.32.

The judgment of the trial court appealed from discharged the garnishee. The Appellate Court reversed such judgment and remanded the cause with directions that a judgment be entered against the garnishee the amount of the judgment of plaintiff against defendants Robert S. Beatty and Myrtle G. Beatty.' As previously stated, the judgment against the Beattys was for $2,457.93.

Plaintiff recognizes that there are decisions of this court which hold that a judgment of the Appellate Court which reverses a judgment or decree of the trial court and remands with directions, so that there is nothing for the trial court to do except execute the mandate, is a final appealable judgment which may be reviewed in the Supreme Court, but it is argued that the provisions of the Civil Practice Act which regulate the review of Appellate Court judgments by the Supreme Court have changed the former practice so that decisions rendered under the former act are no longer controlling.

A brief review of the statutes which regulate the review of Appellate Court judgments by the Supreme Court and some of the decisions thereunder is necessary. The act of 1877 provided that the Supreme Court might review judgments of the Appellate Court in certain classes of cases, if the judgment of the Appellate Court (a) affirmed the judgment or decree of the trial court, or (b) if final judgment was entered by the Appellate Court, or (c) if the judgment of the Appellate Court ‘be such that no further proceedings can be had in the court below, except to carry into effect the mandate of the appellate court.’ This act continued in force in substantially the same language until the Practice Act of 1907 was adopted. Hurd's Ill.Rev.Stat.1906, chap. 110, sec. 90. During such period this court in many cases held that a judgment of the Appellate Court which reversed and remanded a cause generally was not a final appealable judgment. Buck v. County of Hamilton, 99 Ill. 507;Anderson v. Fruitt, 108 Ill. 378;Trustees of Schools v. Potter, 108 Ill. 433, and other cases. During the same period it was held that a judgment of the Appellate Court which reversed a judgment or decree of the trial court and remanded the cause with specific directions, so that nothing remained to be done by the trial court except to execute the mandate, such a judgment was final and appealable. Joliet & Chicago R. Co. v. Healy, 94 Ill. 416. Many of the cases referred to the language of the statute in determining the character of a judgment that was subject to review. Callahan & Son v. Ball, 197 Ill. 318, 64 N.E. 295. Frequent reference was also made in the cases to section 8 of the Appellate Court Act. Hurd's Ill.Rev.Stat.1906, chap. 37, par. 25.

The Practice Act of 1907 and the amendments of 1909 repealed both that part of section 8 of the Appellate Court Act which has been referred to, and section 90 of the former Practice Act. Lansingh v. Dempster, 255 Ill. 161, 99 N.E. 354. Said section contained provisions like the former act as to the character of the judgment which might be reviewed by the Supreme Court. Such section was amended in 1909 and the provisions as to the kind of judgments that were reviewable in the Supreme Court were omitted. In Lansingh v. Dempster, 255 Ill. 161, 99 N.E. 354, it was held that the Practice Act of 1907 and the amendment of 1909 repealed both that part of section 8 of the Appellate Court Act which was inconsistent with the provisions of the Practice Act and section 90 of the former Practice Act, and that the whole subject of appeals from the Appellate to the Supreme Court was covered by section 121 of the Practice Act. Section 121, as amended in 1909, made due exception for those judgments or decrees of the Appellate Court which were subject to review by the Supreme Court under constitutional requirements, and then provided that in all cases the judgments or decrees of the Appellate Courts should be final, subject, however, to the right of review (1) where a majority of the judges of the Appellate Court were of the opinion that the case, regardless of the amount involved, contained a question of such importance that it should be passed upon by the Supreme Court, and ...