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Coby v. Turner

APRIL 29, 1964.

CHARLIE COBY, PLAINTIFF-APPELLEE,

v.

JOHN TURNER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County; the Hon. WILLIAM R. DUSHER, Judge, presiding. Affirmed.

CARROLL, J.

The plaintiff brought an action to revive a judgment. The complaint alleged that on May 10, 1955, a judgment was entered against the defendant and for the plaintiff in the amount of $6,500 in a certain case; that an execution was issued and returned no property found and no part satisfied; that the defendant paid $750 to plaintiff as partial payment of the judgment; that an action has accrued to the plaintiff to have the judgment revived and have execution thereon against the defendant for damages and costs as provided by statute. The complaint prays for the revival of the judgment.

The defendant filed a motion to strike the complaint, which was denied. The plaintiff's motion for summary judgment was also denied.

The answer of the defendant denied all the allegations of the complaint and demanded trial by jury. The plaintiff moved for an order dismissing the jury demand and this motion was granted.

The record shows that when the case came on for trial both parties and their attorneys were present in court. At that time the plaintiff's attorney moved the court for leave to amend the complaint to show that $700 instead of $750 had been paid by the defendant to the plaintiff on account of the judgment.

The court, after hearing the plaintiff's above motion and without receiving evidence, announced that it would revive the judgment and give the defendant credit for $700 that had been paid. The record does not show that the defendant made any objection to this procedure or that he made any effort or offer to present evidence. A written order was entered in which the court revived the judgment, giving the defendant credit for $700.

The defendant, in appealing from the judgment against him assigns three errors: (1) That the complaint is fatally defective. (2) That the defendant was deprived of his constitutional right of trial by jury. (3) That the judgment of revival is void.

In support of his contention that the complaint does not state a cause of action, the defendant argues that it does not comply with the requirements of Supreme Court Rule 13(2). This rule provides:

In pleading a judgment, decree or order of any State or Federal Court or the decision of any State or Federal board of special jurisdiction, it is sufficient to state the date of its entry, and describe its general nature and allege generally that the judgment or decision was made or given. Ill Rev Stats 1963, chap 110, sec 101.

Section 24b of the Limitations Act provides that "Judgments in any court of record in this State may be revived by scire facias, or by ordinary civil action in lieu of scire facias as provided by the Civil Practice Act, . . ." This section goes on to state that in actions to revive a judgment by scire facias, the plaintiff's affidavit shall set forth ". . . a description of the original judgment by title of the action, date and amount thereof, together with a statement of any partial satisfaction of such original judgment that may appear of record at the time of making such affidavit. . ." Ill Rev Stats 1963, chap 83, sec 24b.

Section 55 of the Civil Practice Act provides that "Any relief which heretofore might have been obtained by scire facias may be had by employing an ordinary civil action." Ill Rev Stats 1963, chap 110, sec 55.

The reviewing courts of this state have on many occasions passed on the sufficiency of pleadings in proceedings to revive a judgment by scire facias. However, they have not passed on the sufficiency of a complaint in an ordinary civil action brought to revive a judgment.

Section 42(2) of the Civil Practice Act provides as follows: "No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet."

The legislature apparently regarded a scire facias proceeding and the civil action in lieu thereof as concurrent and identical remedies. Smith v. Carlson, 8 Ill.2d 74, 132 N.E.2d 513. The complaint herein certainly "reasonably informed the opposite party of the nature of the claim being asserted against him" thereby conforming to the requirements of section 42(2) of the Civil Practice Act, and since the complaint contained all the allegations required of an affidavit in scire facias ...


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