Appeal by plaintiff from the Circuit Court of Macon county;
the Hon. MARTIN E. MORTHLAND, Judge, presiding. Heard in this
court at the
MR. PRESIDING JUSTICE WHEAT DELIVERED THE OPINION OF THE COURT.
The beneficial plaintiff in garnishment, Fred Baumgarte, as administrator of the estate of Archie R. Baumgarte, deceased, appeals from a judgment of the circuit court of Macon county, Illinois, allowing the motion of defendant-garnishee, Robert L. Logan, to strike plaintiff's amended interrogatories and allegations and dismissing his garnishment proceeding.
Plaintiff's affidavit for garnishment process alleged, in due statutory form, that on August 13, 1951, a judgment in the amount of $10,000 was rendered in his favor in the circuit court of Macon county, Illinois, against one Willie Brack; that execution was duly issued thereon and returned "no property found"; and that plaintiff has just reason to believe that the garnishee is indebted to or has in his hands effects or estate of the judgment debtor.
Plaintiff's interrogatories to garnishee were thereafter stricken on defendant's motion and leave was granted to file amended interrogatories.
In both the transcript of record and abstract there appears, immediately following the order allowing the motion to strike these interrogatories, plaintiff's first amended interrogatories to garnishee and, with specific reference thereto, certain allegations with exhibits attached.
Before filing his brief on appeal, defendant filed a motion before this court representing that these allegations and exhibits were not before, and were not considered by, the trial court, that the garnishment statute makes no provision for the filing thereof; that the transcript of record does not show that they were, in fact, filed; and that they were never introduced into evidence. He accordingly moved this court to strike that portion of the transcript of record and abstract setting forth these allegations and exhibits. In addition, his motion prayed that this court strike plaintiff's statement, brief and argument on appeal for failure to sufficiently show the nature of the pleadings, for failure to contain a statement of errors relied upon for reversal, and because the statements of fact contained in the above mentioned allegations are not properly before this court or substantiated by the transcript of record and defendant has had no opportunity to offer evidence in rebuttal thereto.
By order of this court entered October 7, 1952, that portion of this motion relating to these matters was taken with the case and will now be considered. Defendant's contentions relating to alleged deficiencies in plaintiff's brief are without substantial merit. While the brief does not contain a formal listing of points relied upon for reversal, it sufficiently appears that it is his contention that the trial court erred in allowing the motion to strike the amended interrogatories and allegations and in entering judgment dismissing the garnishment proceeding. It appears, moreover, that defendant's motion before this court is made in disregard of the elementary rule that a motion to strike assumes the truth of facts properly alleged in the pleading attacked by the motion. As defendant never answered in the trial court, he perforce had no opportunity to introduce any evidence.
As to the allegations and exhibits challenged by defendant as not a proper part of the record for the reasons indicated above, it seems reasonably clear that the filing date shown on page 57 of the transcript of record and on page 8 of the abstract refers to both the amended interrogatories and the allegations and exhibits, and that they were all, in fact, filed with the clerk of the trial court at the same time. The contention that the garnishment statute makes no provision for the filing of allegations is erroneous as the statute specifically provides that "the plaintiff shall . . . file . . . such allegations and interrogatories . . . upon which he shall be desirous to obtain and compel the answer of any . . . garnishee." (Ill. Rev. Stats. 1951, chap. 62, sec. 5 [Jones Ill. Stats. Ann. 109.288].) As the allegations and interrogatories are associated in this manner in the language of the statute it seems clear that the granting of leave to plaintiff to file amended interrogatories necessarily implied leave to file allegations related thereto. Moreover, defendant's own motion in the trial court to strike the amended interrogatories represents that "the amended interrogatories and allegations set forth no new matter" (emphasis added), tending to suggest that his assertion before this court that the allegations were never filed or brought to the trial court's attention is frivolous. For the reasons indicated, the remainder of the motion filed in this court September 22, 1952, as to which ruling was reserved and taken with the case by order of this court dated October 7, 1952, is denied.
It appears from plaintiff's above mentioned allegations that defendant, while engaged in the used car business, sold and delivered to plaintiff's judgment debtor a used truck; that as a part of the transaction defendant was to obtain for the judgment debtor public liability and property damage insurance on the truck which he failed to do; and that thereafter an automobile accident occurred between the judgment debtor and plaintiff's intestate resulting in the judgment which plaintiff seeks to collect from defendant.
The theory of plaintiff's case is: (1) That defendant's undertaking to obtain insurance for the purchaser of the truck was a part of the sales agreement; (2) That having failed to obtain such insurance, he is liable to the same extent that an insurer would have been had an insurance policy been obtained as agreed upon; (Schmidt v. Sinclair, 342 Ill. App. 484; Evan L. Reed Mfg. Co. v. Wurts, 187 Ill. App. 378; Johnston v. Otta, 340 Ill. App. 270, and 18 A.L.R. 1204); and (3) That as a judgment against an insured may be enforced against the insurer by garnishment even though liability is denied (Zimek v. Illinois Nat'l Casualty Co., 370 Ill. 572, and Barr for Use of Senft v. Country Mutual Casualty Co., 345 Ill. App. 199), the same remedy is appropriate here. The only material issue made by defendant in response is that his alleged liability to the judgment debtor is contingent and unliquidated and therefore not subject to garnishment.
The garnishment statute authorizes issuance of garnishment process against any person "indebted to . . . or having effects or estate" of the judgment debtor in his possession but as defendant points out, it is well settled by judicial construction that debts which are either "contingent" or "unliquidated" are not within the purview of the statute.
[6-8] In Zimek v. Illinois Nat'l Casualty Co. (supra), relied upon by both parties, it was held that an indebtedness is due without contingency if all events necessary to fix the garnishee with liability have taken place and it remains only to be determined whether those events make the garnishee liable. In the instant case all events and transactions determinative of defendant's liability have long since occurred and therefore his contention that garnishment is inappropriate because the indebtedness in question is "contingent" is clearly without merit. It is equally well established by judicial construction that an "unliquidated" claim is not a debt within the meaning of the garnishment statute and therefore not recoverable by garnishment.
Plaintiff relies upon the decision of the Supreme Court in the Zimek case (supra) as authority for his contention that the claim here in question is liquidated. In that case the judgment creditor, after judgment and return of execution unsatisfied, instituted a garnishment proceeding against a casualty company which had issued a liability policy on an automobile owned by the wife of the judgment debtor, the protection of the policy extending to persons operating the automobile with the permission of the owner. The casualty company denied liability as garnishee on the ground that the judgment debtor was operating the automobile without such permission and that the claim in question was consequently contingent and unliquidated.
The Supreme Court, after holding, as noted above, that the claim was not contingent, remarked as follows:
"Neither is the claim against the garnishee unliquidated. If any amount is due from the casualty company under the policy of insurance, it has been rendered certain by the final judgment in the damage suit brought by (the judgment creditor against the judgment debtor). Where the amount due may be ascertained by computation or reference to the contract out of which the claim arises it is a ...