Peoples v. Carborundum Co.

• Decision Date: 05 April 1984
• Docket Number: No. 5-83-0437,5-83-0437
• Citation: 123 Ill.App.3d 39,462 N.E.2d 829,78 Ill.Dec. 710
• Parties: , 78 Ill.Dec. 710 James O. PEOPLES, Plaintiff-Appellee, v. The CARBORUNDUM COMPANY and Granite Sheet Metal Works, Inc., Defendants- Appellants.
• Court: United States Appellate Court of Illinois

Page 829

462 N.E.2d 829

123 Ill.App.3d 39, 78 Ill.Dec. 710

James O. PEOPLES, Plaintiff-Appellee, v. The CARBORUNDUM COMPANY and Granite Sheet Metal Works, Inc. Defendants- Appellants.

No. 5-83-0437.

Appellate Court of Illinois Fifth District.

April 5, 1984.

Burton C. Bernard, Ronald A. Roth, Bernard & Davidson, Granite City, for The Carborundum Co.

John W. Leskera, Dunham, Boman & Leskera, East St. Louis, for Granite Sheet Metal Works, Inc.

William W. Schooley, Law Offices of William W. Schooley, Granite City, for plaintiff-appellee.

WELCH, Presiding Justice:

At issue in this case is whether a judgment debtor or debtors can, upon tender of the full amount of the judgment plus interest and costs to the creditor, compel the creditor to execute a release of the judgment. We hold that under section 12-183(b) of the Code of Civil Procedure (Ill.Rev.Stat.1983, ch. 110, par. 12-183(b)), a judgment debtor may do so.

This controversy is a result of our decision in Peoples v. Granite City Steel Co. (1982), 109 Ill.App.3d 265, 64 Ill.Dec. 811, 440 N.E.2d 363. There, we upheld a jury's verdict in favor of plaintiff James Peoples in an action brought under the Structural Work Act (Ill.Rev.Stat.1983, ch. 48, par. 60 et seq.) against, inter alia, defendants Granite Sheet Metal Works (Sheet Metal) and the Carborundum Company (Carborundum). Peoples is the judgment creditor in these proceedings and Sheet Metal and Carborundum are the judgment debtors.

Following the issuance of our opinion, Carborundum's counsel appeared at the office of Peoples's counsel with five checks and a release of judgment form. The checks, two of which were from Sheet Metal's insurer, two of which were from Carborundum's insurer and one of which was from Carborundum's law firm, represented the total amount of the judgment upheld by this court plus interest and certain costs. The release form stated that Peoples would release the judgment entered against Sheet Metal and Carborundum. Peoples's counsel returned the checks unendorsed and the release unsigned.

Subsequently, Sheet Metal and Carborundum paid the amount represented by the checks to the office of the clerk of the circuit court of Madison County, to be held in escrow for Peoples, his counsel, his employer G.H. Sternberg and Company (Sternberg) and Sternberg's insurer. With this payment, Sheet Metal and Carborundum filed a petition under section 12-183(b) of the Code of Civil Procedure. In that petition, supported by the affidavit of Carborundum's counsel, Sheet Metal and Carborundum recounted the offer and return of the checks and release, and referred to their payment to the clerk of the court. They alleged that the plaintiff had wilfully refused to deliver the release, and they requested the court to enter an order satisfying the judgment in favor of Peoples and releasing all liens based on that judgment.

A brief and acrimonious hearing was held on the petition, at which counsel for various parties testified concerning negotiations and agreements between certain of those parties about the method of satisfying Peoples's judgment. After the hearing, the court entered an order denying the petition, reasoning that Peoples may pursue all, some, or one of the tortfeasors responsible for his injury for the full amount of his damages and need not accept tender of that amount from a tortfeasor not of his own choosing. Sheet Metal and Carborundum appeal from that order.

Section 12-183(b) of the Code of Civil Procedure reads as follows:

"If the judgment creditor, his or her assigns of record or other legal representative to whom tender has been made of all sums of money due him or her from the judgment debtor including interest, on any judgment entered by a court, wilfully fails or...