Appeal from the Municipal Court of Chicago; the Hon. WILLIAM
M. BARTH, and DANIEL J. McNAMARA, Judges, presiding, and appeal
from the Superior Court of Cook County; the Hon. ALAN E.
ASHCRAFT, Judge, presiding. Affirmed in part, reversed in part
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Three appeals, all taken by Western United Dairy Company, have been consolidated in this case. Western had obtained a judgment against defendants in the Municipal Court of Chicago, and the first appeal is from an order satisfying that judgment on defendants' petition in the nature of a writ of audita querela. The second appeal is from an order of the same court dismissing garnishment proceedings which had been instituted for the collection of the judgment. The third appeal is by Western as intervening petitioner in a Superior Court garnishment proceeding. A different creditor had obtained a judgment in that court against the same defendants, and sought to satisfy it from the same funds which were the subject of the garnishment proceedings in the Municipal Court. The Superior Court directed the funds to be paid to the Superior Court judgment creditor. The garnishee bank has not taken part in any of the appeals.
We consider the time element to be significant, so the consolidated facts will be set forth in chronological order. We refer to the Municipal Court unless otherwise indicated.
May 12, 1960: Judgment by confession entered in favor of Western and against defendants for $17,322.82 on a note and conditional sales agreement.
August 3, 1960: Garnishment summons served.
August 12, 1960: Answer of garnishee filed showing funds due defendants in the amount of $2,583.53.
October 17, 1960: Appearance and jury demand filed by defendants (with leave of court) together with a petition in the nature of a writ of audita querela alleging that subsequent to the entry of judgment the property, subject of the sales agreement between the parties, had been turned over to plaintiff; that plaintiff thereupon elected to retain the property and, under the terms of the agreement, accept previous payments as liquidated damages; and that the judgment was thereby satisfied in full. Hearing on the petition was set for October 25, 1960, and, on that date, continued to November 15, 1960.
November 15, 1960: At an ex parte hearing on defendants' petition jury was waived, and an order entered satisfying the judgment of May 12, 1960.
November 21, 1960: (Superior) Judgment by confession entered in favor of Marvin P. Cohen and against defendants for $2,700 on a note dated October 10, 1960. Cohen is the attorney for defendants.
November 22, 1960: (Superior) Garnishment summons served.
December 2, 1960: (Superior) Answer of garnishee filed showing no funds due defendants.
December 12, 1960: Order entered denying a motion of Western to vacate the order of November 15, 1960.
December 20, 1960: On motion of defendants, based on satisfaction of the judgment, an order was entered dismissing the garnishment proceedings.
December 28, 1960: Petition filed by Western to vacate the orders of November 15 ...