White Way Sign & Maintenance Co., Inc. v. Seltzer Pontiac, Inc.
Decision Date | 31 January 1974 |
Docket Number | No. 45649,45649 |
Citation | 56 Ill.2d 342,307 N.E.2d 386 |
Parties | WHITE WAY SIGN & MAINTENANCE CO., INC., Appellant, v. SELTZER PONTIAC, INC., Appellee. |
Court | Illinois Supreme Court |
Sheldon A. Harris, Chicago (Stuart N. Litwin, Chicago, of counsel), for appellant.
Orner & Wasserman, Chicago (Norton Wasserman, Chicago, of counsel), for appellee.
Plaintiff, White Way Sign & Maintenance Co., filed a notice of appeal to this court on December 13, 1972, from certain orders of the circuit court of Cook County dismissing garnishment proceedings, discharging the garnishee (General Motors Acceptance Corporation) and refusing to vacate the aforesaid orders. Plaintiff contends that the trial court's action resulted in holding section 1 of the Garnishment Act (Ill.Rev.Stat.1971, ch. 62, par. 33) unconstitutional. Section 1 provides:
'Upon the filing by a judgment creditor or other person of an affidavit that the affiant believes any person is indebted to the judgment debtor, other than for wages, or has in his possession, custody or control any other property belonging to the judgment debtor, or in which the judgment debtor has an interest, and which includes written interrogatories to be answered by that person with respect to the indebtedness or other property and the last address of the judgment debtor known to the affiant as well as the name of the judgment debtor, the clerk of the court in which the judgment was entered shall issue summons against the person named in the affidavit commanding him to appear before the court as garnishee and answer the interrogatories in writing under oath.'
In 1969 plaintiff and defendant, Seltzer Pontiac, Inc., entered into a lease agreement for the construction of a promotional sign on the latter's premises. The agreement contained a cognovit provision. Difficulties then arose in obtaining the necessary municipal permits and the sign was removed by order of court. In July 1972 judgment by confession was entered against defendant for $23,086.14. Plaintiff on August 21, 1972, filed an affidavit for nonwage garnishment pursuant to section 1 and summons was served upon the garnishee. During oral argument of this cause we were informed that defendant first received notice of the entry of the judgment and the ancillary proceedings from the garnishee. Defendant sought leave to open the judgment by confession (50 Ill.2d R. 276, Ill.Rev.Stat.1971, ch. 110A, § 276) and to dismiss the garnishment. Each matter was considered as separate and assigned to a different judge.
On October 12, 1972, the confession of judgment was opened with the judgment to stand as security, and leave was granted to file additional pleadings. Plaintiff filed an amendment to its complaint, and in January 1973 defendant filed its answer thereto. A jury trial was demanded and this cause is now pending.
On November 13, 1972, defendant's motion to dismiss the garnishment proceeding and discharge the garnishee was sustained by the other judge, who on December 12, 1972, refused to vacate this order. After notice of appeal had been filed, plaintiff sought to stay the aforesaid orders but the motion was denied after it had been represented that all funds previously held by the garnishee and owed to defendant had been paid over to defendant subsequent to the entry of the November 13 order.
Before we might direct our discussion to the arguments presented in respect to the validity of section 1 of the Garnishment Act there is the threshold consideration as to this court's jurisdiction to entertain this appeal. Garnishment is an ancillary proceeding designed to obtain satisfaction of a judgment (Wieboldt Stores, Inc. v. Sturdy, 384 Ill. 271, 275, 51 N.E.2d 268) and is not a distinct or separate suit from the original action for judgment (Zimek v. Illinois National Casualty Co., 370 Ill. 572, 574, 19 N.E.2d 620). The novel...
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