Zimek v. Illinois Nat. Cas. Co.

• Decision Date: 20 February 1939
• Docket Number: No. 24952.,24952.
• Parties: ZIMEK v. ILLINOIS NAT. CASUALTY CO.
• Court: Illinois Supreme Court

370 Ill. 572

19 N.E.2d 620

ZIMEK

v.ILLINOIS NAT. CASUALTY CO.

No. 24952.

Supreme Court of Illinois.

Feb. 20, 1939.

Garnishment proceedings by Mabel Fieldcamp against the Illinois National Casualty Company, claiming funds in the garnishee's hands belonging to plaintiff's judgment debtor, Theodore Zimek. Judgment for plaintiff for $5,000, and the garnishee appeals directly to the Supreme Court.

Affirmed.Appeal from the Superior Court, Cook County; John P. mCgoorty, judge.

John D. Pope, of Chicago, for appellant.

Royal W. Irwin, of Chicago, for appellee.

ORR, Justice.

Mabel Fieldcamp recovered a judgment for $5,000 in the superior court of Cook county against Theodore Zimek for injuries received when the automobile Zimek was driving collided with the car in which she was a passenger. After a writ of execution against Zimek was returned unsatisfied, she brought garnishment proceedings against the Illinois National Casualty Company, claiming there were funds in its hands belonging to Zimek. The superior court entered judgment for plaintiff and the casualty company has appealed directly to this court. We have jurisdiction because the constitutionality of the garnishment statute is challenged.

The automobile Zimek was driving when the accident occurred was registered in the name of his wife, Emma. She held, at that time, an automobile insurance policy issued by the Illinois National Casualty Company. By the terms of the policy, the casualty company agreed to insure Mrs. Zimek against liability for damages of $5,000 for bodily injuries suffered by any person as a result of the operation of her automobile. The same protection against liability was extended by the policy to other persons operating the automobile with the permission of the insured. Whether Zimek had the consent of his wife to operate the car on the date of the accident is a matter of dispute. The company insists he did not have such permission, and on that basis denies he is entitled to protection under the policy. At the garnishment proceedings the trial court, over objection of the garnishee, received in evidence the insurance policy, heard the witnesses, and found Zimek had the requisite permission from his wife to operate the car. Whereupon judgment was entered against the casualty company in favor of Mabel Fieldcamp. Before proof was taken in the trial court two objections to the suit were raised by the casualty company, both of which were overruled. These rulings are assigned as errors on this appeal.

The constitutionality of the garnishment statute (Ill.Rev.Stat.1937, chap. 62, § 1 et seq.) is challenged because it contains no provision for notice of the garnishment proceedings to be served upon the judgment debtor. The casualty company argues that such an omission violates the requirements of due process of law. We cannot agree with this view. The garnishment process is remedial in nature, designed to reach property belonging to the judgment debtor after ordinary execution has failed. Wheeler v. Chicago, Title & Trust Co., 217 Ill. 128, 75 N.E. 455. It is not a distinct and separate suit, but an additional step in the original action for judgment. Kelly v. Ryan, 8 Wash. 536, 36 P. 478. So long as Zimek was personally served with process or entered his appearance in the damage suit, he is not entitled to notice of garnishment, which is in aid of that suit. His knowledge of the principal action against him is sufficient warning that his adversary may be expected to take all available steps to obtain satisfaction of any judgment rendered. We, therefore, hold that the due process requirements in garnishment proceedings are satisfied by proper notice to the principal debtor of the original suit brought by the creditor. Rood on Garnishment, sec. 280; Kelly v. Ryan, supra; Wright v. Southern Railway Co., 141 N.C. 164, 53 S.E. 831.

The validity of the sheriff's return of execution against Zimek is also questioned by the casualty company. The writ was returned three days after issuance with the following endorsement on the back: ‘The within named defendant not found and no property of the within named defendant found in my County on which to levy this writ, I therefore return the same, no property found and no part satisfied, this 8th day of March, A. D. 1937.’ Under the statute a return of execution ‘no property found’ is necessary to support garnishment. Ill.Rev.Stat.1937, chap. 62, § 1. The instant return is sufficient on its face to satisfy the statute (Michigan Central Railroad Co. v. Keohane, 31 Ill. 144) and is prima facie evidence of the fact that the judgment debtor had no property in Cook county. Owens v. Ranstead, 22 Ill. 161;Chanute v. Martin, 25 Ill. 49 (Orig. Ed. 63); Bowen v. Parkhurst, 24 Ill. 257, 258. The casualty company, however, attempted to rebut this prima facie case by showing, on the trial, that no effort had been made by the sheriff to serve the writ on the judgment debtor. But such a showing does not rebut the essential fact established by the return, namely, that the judgment debtor had no property in the county. Until evidence is offered that Zimek had property in Cook county subject to execution the prima facie case made by the sheriff's return must stand. Chanute v. Martin, supra. The fact that the attorney for the judgment creditor, Mabel Fieldcamp, gave the sheriff an indemnifying agreement waiving any damages which might accrue to plaintiff by return of the writ before the expiration of ninety days does not invalidate the return, since the testimony shows the writ was returned by the sheriff in his discretion...