Rowoldt ex rel. Flanagan v. Cook Cnty. Farmers Mut. Ins. Co.

• Decision Date: 30 April 1940
• Docket Number: Gen. No. 40945.
• Citation: 305 Ill.App. 93,26 N.E.2d 903
• Parties: ROWOLDT, FOR USE OF FLANAGAN ET AL. v. COOK COUNTY FARMERS MUT. INS. CO.
• Court: United States Appellate Court of Illinois

305 Ill.App. 93

26 N.E.2d 903

ROWOLDT, FOR USE OF FLANAGAN ET AL.

v.COOK COUNTY FARMERS MUT. INS. CO.

Gen. No. 40945.

Appellate Court of Illinois, First District, First Division.

April 17, 1940.

Rehearing Denied April 30, 1940.

Appeal from Circuit Court, Cook County; Jacob Berkowitz, Judge.

Garnishment action by Wilhelm Rowoldt, for the use of Beulah Flanagan and another, against the Cook County Farmers Mutual Insurance Company. There was a verdict for plaintiffs, and from an order granting a new trial, plaintiffs appeal.

Order reversed and cause remanded with directions to enter judgment on the verdict. McKinley, Price & Quindry, of Chicago (William McKinley and Paul E. Price, both of Chicago, of counsel), for appellants.

Erwin W. Roemer and Edwin D. Lawlor, both of Chicago (Edwin D. Lawlor, of Chicago, of counsel), for appellee.

McSURELY, Justice.

Beulah Flanagan and Marjorie Flanagan, hereafter called plaintiffs, brought suit against Wilhelm Rowoldt to recover damages suffered by them because of his negligent driving of his automobile; upon trial by a jury he was found guilty and Beulah Flanagan's damages were assessed at $6,200, and Marjorie's at $750, and judgments for these amounts were entered June 2, 1938. The present action is garnishment against the defendant insurance company, which had issued to Rowoldt its automobile liability insurance policy; after trial a judgment was entered against the garnishee defendant, assessing plaintiffs' damages at $6950 and interest; the court on motion granted a new trial, and on petition to this court leave was given to appeal from that order.

The trial court stated that his only reason for granting a new trial to defendant was that certain evidence offered by it should have been admitted. This evidence was to the effect that the judgment debtor, Rowoldt, had real estate in Cook county sufficient to satisfy the judgment. By our statute on Judgments, chap. 77, sec. 11, Ill.Rev.Stat.1939, it is provided that the person in whose favor execution is issued may elect as to what property shall be levied upon, provided personal property shall be last taken.

The affidavit for garnishment was filed November 16, 1938, and answer to the interrogatory was filed; an additional interrogatory was filed, and December, 1938, defendant filed its answer to this additional interrogatory. These answers in substance denied that it owed Rowoldt anything and any liability under its insurance policy issued to him. Four months later, that is, April, 1939, the appearance of the attorneys for the garnishee was withdrawn and that of another counsel, Erwin Roemer, substituted, and then for the first time there was an amendment to the answers tendered asserting that Rowoldt had real estate out of which the judgment might be satisfied; the trial court denied leave to file the amendment, except in one respect not involved in this appeal.

It is conceded that all the statutory conditions prerequisite to the issuance of a summons against the defendant garnishee had been complied with. The execution on the original judgment was delivered to the sheriff on July 12, 1938, and an actual demand was made upon the judgment debtor and the return of “no property found” was made October 10, 1938. The return in due order recited a demand upon Rowoldt to satisfy the writ, the delivery of a copy to him with an indorsement that he must file a schedule of his property within ten days, and that, “Being unable to find any property of the within named defendant in my County on which to levy this writ I therefore return the same no property found. * * *” There is no claim that this return was made at the suggestion of plaintiffs or their counsel. Subsequently, counsel for plaintiffs filed an affidavit in garnishment reciting the judgment against Rowoldt, the issuance of the execution thereon and the return of “no property found;” the affidavit further avers that defendant Rowoldt has no property within the knowledge of this affiant in his possession liable to execution, but the affiant has just reason to believe that the defendant insurance company is indebted to Rowoldt or has effects or estate of his in its hands.

Plaintiffs were not bound to make every possible effort to find property of their judgment debtor, and garnishment proceedings will not be defeated if it appearsthat they used reasonable effort to find it. If a judgment creditor, his attorney or the sheriff, knows of the existence of such property prior to suing out garnishment summons, such information can not be ignored. The garnishee was summoned November 16, 1938, and interrogatories were filed on the same date and not until April, 1939, did the garnishee defendant assert that the judgment debtor had real estate.

We find no cases supporting the proposition that a garnishee may assert as a defense that the judgment debtor has real estate or other property sufficient to satisfy the judgment. If a garnishee has property belonging to the judgment debtor, of what concern is it to him that the judgment debtor has other property? As was said in Pine Tree Lumber Co. v. Central Stock & Grain Exchange, 238 Ill. 449, 87 N.E. 539, 540, the garnishee is, theoretically, a disinterested stakeholder. He may deny any indebtedness to the judgment debtor or that he has any property or effects of such debtor, and upon showing these facts is entitled to be discharged. But, “If he owes the defendant, or has property or effects belonging to him in his hands, it is a matter of indifference to him whether he pays the money or delivers the property to the defendant or to the plaintiff in the case, provided he is properly protected in making such payment or delivery. * * * If a judgment is obtained against the defendant, it is no concern of the garnishee that irregularities have intervened which the defendant may be willing to waive, or fail or neglect to take advantage of.” In the instant case although demand was made upon Rowoldt, the judgment debtor, nearly four months prior to the affidavit in garnishment, he saw fit to waive his right to have the real estate first taken. How then can the garnishee avail itself of any irregularity which the judgment debtor apparently is willing to waive? Cases like Kelly v. Marks, 264 Ill.App. 402, are not in point, as there the return of the sheriff was made pursuant to directions of plaintiff or his counsel and the execution debtor moved to vacate the judgment against the garnishee.

In Zimek v. Illinois National Casualty Co., 370 Ill. 572, 19 N.E.2d 620, 622, it is said that the return of the execution by the sheriff “no property found” is prima facie evidence of the fact that the judgment debtor had no property in Cook county, and cited Chanute v. Martin, 25 Ill. 63 (p. 49 of reprint), which held in substance that to defeat the garnishment it must appear there was real estate of which the sheriff, the plaintiff or his attorney had knowledge, or which, by the exercise of reasonable care, could have been discovered. Also, in the Zimek case it does not appear that the judgment debtor had any knowledge of the return or of the existence of the execution against him, thus distinguishing it from ...