O'Toole v. Helio Products, Inc.

• Citation: 17 Ill.App.2d 82,149 N.E.2d 795
• Decision Date: 01 April 1958
• Docket Number: Gen. No. 47362
• Parties: Frank O'TOOLE and Margaret A. O'Toole, Appellants, v. HELIO PRODUCTS, Inc. and First Commercial Bank, Appellees.
• Court: United States Appellate Court of Illinois

Page 795

149 N.E.2d 795

17 Ill.App.2d 82

Frank O'TOOLE and Margaret A. O'Toole, Appellants, v. HELIO PRODUCTS, Inc. and First Commercial Bank, Appellees.

Gen. No. 47362.

Appellate Court of Illinois, First District, Second Division.

April 1, 1958.

Rehearing Denied April 20, 1958.

Eugene R. Ward, Chicago, for appellants.

Julius J. Schwartz and Leonard Gordon, Chicago, for appellees.

KILEY, Presiding Justice.

This is an action to recover money paid out under a garnishment judgment. Helio Products, Inc., the judgment creditor of plaintiffs, and the First Commercial Bank, the garnishee, hereinafter referred to respectively as Helio and the Bank, were the defendants. Judgment was rendered in favor of the Bank but against Helio for $1,064.10, representing the amount paid out under the garnishment proceeding plus interest, fees and costs. Plaintiffs appeal from the judgment in favor of the Bank.

Plaintiffs signed a contract form with Helio for storm windows. The form contained a judgment note with the usual authority to confess judgment. The note was blank except for the signatures of plaintiffs. It did not contain the name of the payee, the sum payable or the date made or due. Plaintiffs thereafter told Helio that they did not want the windows. Helio confessed judgment on the note for $654.10 which represented the contract price and costs. Subsequently, it brought garnishment proceedings and summons was served upon the Bank, where plaintiffs had an account. The Bank answered the summons stating it had $654.10 of plaintiffs' money on deposit. Judgment was entered on the answer for that amount and was paid by the Bank.

On motion thereafter by plaintiffs, Helio's confession judgment was vacated and set aside. Subsequently, the Bank moved to vacate the garnishment judgment and for a return of the money. This judgment was vacated, but the court declined to order Helio to return the money to the Bank. Plaintiffs then filed this suit against both Helio and the Bank.

The question is whether the garnishee Bank is protected by its payment to Helio under the garnishment proceedings.

Under the general rule the garnishee is not protected when he makes payment under a garnishment judgment if the original judgment against the principal debtor is void. Pine Tree Lumber Co. v. Central Stock & Grain Exchange, 238 Ill. 449, 451, 87 N.E. 539; McCormick v. McCormick, 243 Ill.App. 55, 60; Kirk v. Elmer H. Dearth Agency, 171 Ill. 207, 212, 49 N.E. 413. Though he need not plead a defense arising from irregularities which may make the original judgment erroneous and reversible, the garnishee, nevertheless, has a duty to '* * * inquire into the validity of the judgment upon which the garnishment proceedings were based.' Czesna v. Lietuva Loan & Savings Ass'n, 252 Ill.App. 612, 619. See also Kirk v. Elmer H. Dearth Agency, 171 Ill. 207, 210-211, 49 N.E. 413. In Weber v. Powers, 213 Ill. 370, 380-381, 72 N.E. 1070, 1073, 68 L.R.A. 610, the court stated that it was a 'settled doctrine' that the authority to confess judgment 'must be clear and explicit, and must be strictly pursued; and that, if there is no power to enter the appearance of the debtor and confess the judgment, such judgment is a nullity, and binds no one, and may be attacked collaterally for want of jurisdiction * * *.' In White v. Jones, 38 Ill. 159, 163, it was held that a judgment is void where the court lacks jurisdiction over the subject matter or over the person of the defendant, and that therefore where a note is confessed before maturity the judgment is void since the attorney confessing the note had no authority to appear for the makers of the note. At page 163 the court in the Jones case stated: '* * * the authority of the attorney to enter his appearance may be contested by the defendant, and if he shows a want of authority, it defeats the jurisdiction of the court.' This holding was followed in Baering v. Epp, 247 Ill.App. 51, 53, where it was pointed out that the authority for confession was 'at any time after maturity.'

Under the facts in this case we think the court lacked jurisdiction over plaintiffs when it entered the judgment by confession. The note is blank as to the name of the payee, the sum payable, the date made and the date on which the installment payments were to commence and on which future...