Peter Fischer Import Motors, Inc. v. Buckley

• Citation: 77 Ill.Dec. 290,121 Ill.App.3d 906,460 N.E.2d 346
• Decision Date: 02 February 1984
• Docket Number: No. 82-2891,82-2891
• Parties: , 77 Ill.Dec. 290 PETER FISCHER IMPORT MOTORS, INC., an Illinois Corporation, Plaintiff- Appellant, v. Vincent BUCKLEY, Defendant, and LaGrange Federal Savings and Loan Association, Garnishee-Appellee.
• Court: United States Appellate Court of Illinois

Page 346

460 N.E.2d 346

121 Ill.App.3d 906, 77 Ill.Dec. 290

PETER FISCHER IMPORT MOTORS, INC., an Illinois Corporation Plaintiff- Appellant, v. Vincent BUCKLEY, Defendant and LaGrange Federal Savings and Loan Association, Garnishee-Appellee.

No. 82-2891.

Appellate Court of Illinois First District, Fourth Division.

Feb. 2, 1984.

Kenneth E. North, Solomon, Rosenfeld, Elliott & Stiefel, Ltd., Chicago, for plaintiff-appellant.

Robert W. Earhart, Jr., Thomas B. Cassidy, Martin, Craig, Chester & Sonnenschein, Chicago, for garnishee-appellee.

ROMITI, Justice:

In this appeal, plaintiff-appellant Peter Fischer Import Motors, Inc. (Fischer) requests that this court reverse the order of the trial court dismissing its order for attachment of a negotiable order of withdrawal (NOW) account at LaGrange Federal Savings and Loan Association (LaGrange) the garnishee in the attachment action and appellee in this appeal. The trial court ordered such dismissal on the grounds that Sections 3003(b) and 3099(d) of the Illinois Savings and Loan Association Act (Ill.Rev.Stat.1981, ch. 17, pars. 3003(b), 3099(d)), exempted the NOW account from attachment.

At the time of Fischer's appeal of the trial court's order, no judgment had been rendered on the merits of Fischer's complaint against the holder of the NOW account, Vincent Buckley, for debts allegedly owed by him to Fischer. We therefore dismiss Fischer's appeal for lack of appellate jurisdiction because the trial court's dismissal of the attachment order was not a final and appealable order.

Fischer's contract complaint filed July 22, 1982 against Vincent Buckley alleged in pertinent part that Buckley had failed to pay Fischer for repairs to his automobile performed by Fischer to Buckley's satisfaction in the amount of $2,953.42. The complaint further stated that Buckley had deceptively attempted to make payment for such repairs through a personal check drawn on his NOW account at LaGrange, but that Fischer had been unable to cash the check the same day Buckley had delivered it to him because a stop payment order had been placed thereon by the time Fischer presented it to LaGrange. The complaint requested that Buckley pay Fischer the $2,953.42 owed it plus interest.

Initial attempts to serve the complaint upon Buckley on July 27 and 31, 1982 were unsuccessful, since the address Buckley had given to Fischer was discovered to be an empty lot and efforts to find other addresses at which Buckley could be located were not fruitful. An alias summons was successfully served on Buckley's father on November 4, 1982.

The record reflects that in the interim between these dates Fischer motioned the trial court on August 25 for a hearing on its "complaint for attachment." The trial court issued its order of attachment on defendant's NOW account at LaGrange on October 1, 1982. That same day, LaGrange filed its motion to dismiss the attachment order on the grounds that it was exempt from garnishment proceedings pursuant to Section 3099(d) of the Illinois Savings and Loan Association Act. (Ill.Rev.Stat.1981, ch. 17, par. 3099(d).) The trial court granted this motion and dismissed the order of attachment in a written order dated October 27, 1982. This appeal by Fischer followed.

Subsequently, Buckley's attorney in the underlying action filed an appearance on his behalf on November 30, 1982. On January 6, 1983, the trial court granted Buckley leave to file an answer and counterclaim, and entered and continued Fischer's motion of that date for a default judgment because of Buckley's failure to answer.

There is nothing further in the record regarding either Fischer's attachment request nor its principal money claim against Buckley. We note specifically that the record fails to contain Fischer's affidavit for an attachment, which is required under Illinois law (Ill.Ann.Stat., ch. 110, pars. 4-104, 4-105 (Smith-Hurd Supp. 1982)), and which confers upon the trial court the jurisdiction to issue any order. (Pullian v. Nelson (1862), 28 Ill. 112; Ford v. Transocean Airlines (1960), 28 Ill.App.2d 234, 171 N.E.2d 225; Winkler v. Barthel (1880), 6 Ill.App. 111.) We also note that there is no transcript of hearings on the attachment order, if any were held. In addition, we note that although it was Fischer's burden to prove that LaGrange as garnishee was in possession of defendant's property (Vinson v. Roscoe (1971), 133 Ill.App.2d 73, 272 N.E.2d 818), it was the garnishee's burden to prove any affirmative defense thereto. Liberty Leasing Company, Inc. v. Crown Ice Machine Leasing Company, Inc. (1974), 19 Ill.App.3d 27, 311 N.E.2d 250.

Both Fischer and LaGrange frame the issue of the present appeal as whether Illinois statutes exempt NOW accounts at a federal savings and loan association from attachment. The central question which the parties seek to raise is whether a NOW account at a federal savings and loan association should be considered a checking account or a savings account for purposes of attachment under Illinois law. The issue is apparently a novel one which has not been addressed in this or other jurisdictions.

Neither party, however, has addressed the threshold question of this court's jurisdiction to entertain the present appeal. We note that it is our duty to consider this issue even where it is not raised by the parties (E.M. Melahn Construction Company v. Village of Carpentersville (1981), 100 Ill.App.3d 544, 56 Ill.Dec. 101, 427 N.E.2d 181), and that if there is no final and appealable order it is the duty of this court to dismiss the action sua sponte. Bell v. Home Federal Savings and Loan Association of Elgin (1976), 38 Ill.App.3d 652, 348 N.E.2d 527.

Generally, an appeal may be taken only from an order that is final. (Supreme Court Rule 301, 87 Ill.2d R. 301.) To be considered final, a trial court's order must either terminate the litigation between all of the parties on its merits or dispose of the rights of the parties' entire controversy. (Cohen v. Sterling Nursing Home, Inc. (1978), 57 Ill.App.3d 162, 14 Ill.Dec. 655, 372 N.E.2d 934.) An order which leaves the plaintiff's main claim still pending and undecided is not final. Trizzino v. Kline Brothers Company (1982), 106 Ill.App.3d 230, 62 Ill.Dec. 160, 435 N.E.2d 958.

Where there are multiple parties or multiple claims, Supreme Court rules permit the appeal of a final order as to one or more but fewer than all the parties or claims where the trial court's order expressly finds that there is no just reason for delaying enforcement or appeal. (Supreme Court Rule 304(a), 87 Ill.2d R. 304(a).) If the trial court's order does not include this express finding, the order is subject to revision at any time before the entry of an order which adjudicates all the claims, rights, and liabilities of the parties. Supreme Court Rule 304(a), 87 Ill.2d R. 304(a).

A trial court's order of an attachment, as well as an order quashing or denying such an order, has no effect on the proceedings regarding the plaintiff's principal money claim against the defendant. (Bates v. Jenkins ...