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Celano v. Frederick

DECEMBER 31, 1964.

JAMES CELANO, PLAINTIFF-APPELLANT,

v.

JOHN FREDERICK, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Superior Court of Cook County; the Hon. ABRAHAM L. MAROVITZ, Judge, presiding. Reversed and remanded cross appeal dismissed.

MR. PRESIDING JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.

Plaintiff appeals from an order dismissing the amended complaint as to two of eleven defendants. The order made appropriate findings under Section 50(2) of the Civil Practice Act to render it appealable. Ill. Rev Stats, c 110, § 50(2).

The issues in this court are fairly simple, but may not be reached without preliminary understanding of the facts which are quite complicated. By the nature of this appeal all facts stated are those alleged in the complaint, in which plaintiff seeks to set out a cause of action for conspiracy.

In May 1960, James Celano (plaintiff in the case at bar) obtained a judgment in the Circuit Court against John and Alice Frederick for $114,122. Execution was returned wholly unsatisfied.

In June 1960, the judgment debtor John Frederick, along with James and Joseph Frederick, and The John Frederick Liquidating Corporation (which we may refer to as the Frederick group) filed suit in the Superior Court (No. 60S 10300) against Angelo Geocaris and others (which we shall refer to as the Geocaris group). That complaint, too, lay basically in conspiracy, and claimed damages of $6,000,000.

On December 4, 1960, having collected nothing on his judgment, Celano instituted supplementary proceedings to discover assets, under the authority of Section 73 of the Civil Practice Act and Supreme Court Rule 24. Ill. Rev Stats, c 110, §§ 73 and 101.24. Citations were served on a dozen or more persons, including the Fredericks and the Geocaris group. Hearings were held, and the only asset of the judgment debtors which was discovered through these proceedings was John Frederick's interest in the suit against the Geocaris group (60S 10300), which was then still pending. Whereupon, after further hearing, a final order was entered in the citation proceedings on January 4, 1961, finding "that any moneys or funds to which the said John Frederick may be or become entitled by reason of any order, decree or judgment entered in said lawsuit (60S 10300), or by reason of any settlement or other disposition of the claims set forth therein, should be applied on the unsatisfied judgment heretofore entered herein." Continuing, the order concluded:

"It Is Therefore Ordered that (the Geocaris group), and each of them, be and they are hereby ordered to pay and deliver over to the Sheriff of Cook County for application to the judgment entered herein in favor of James Celano on May 11, 1960 any and all money and/or other considerations to which the judgment debtor, John Frederick, may be or become entitled by reason of any order, decree or judgment entered in a certain cause now pending undetermined in the Superior Court of Cook County entitled John Frederick, et al. vs. Angelo G. Geocaris, et al., bearing number 60 S 10300, or by reason of any settlement or other disposition of the claims alleged by the plaintiffs therein;

"It Is Further Ordered that the said third parties be and they are hereby ordered to give to the judgment creditor, James Celano, not less than five days written notice of their intention to pay or deliver over to James Frederick, Joseph Frederick or John Frederick Liquidating Corporation, an Illinois corporation, any moneys and/or other consideration, to which said James Frederick, Joseph Frederick or John Frederick Liquidating Corporation may be or become entitled by reason of any order, decree or judgment entered in a certain cause now pending undetermined in the Superior Court of Cook County entitled John Frederick, et al. vs. Angelo Geocaris, et al., bearing number 60 S 10300, or by reason of any settlement of other disposition of the claims alleged by the plaintiffs therein."

In all of these litigated matters, including the instant case, the Frederick group were represented by attorneys Marcus Wexman and Richard L. Mandel.

On November 20, 1961, without notice or payment to Celano, suit No. 60S 10300 was dismissed.

Complaint in the case at bar was filed by Celano in May 1962 and amended in December 1962. Defendants are the Geocaris group, the Frederick group, Wexman and Mandel.

For our purposes the critical parts of the complaint are the following:

8. In the early part of 1961, the exact date being unknown to the plaintiff, the defendants and each and all of them, and others to the plaintiff unknown, conspired together and formed the deliberate design and purpose:

A. To fraudulently deprive the judgment creditor, James Celano, plaintiff herein, of monies, funds and/or properties lawfully due him from John Frederick, to be applied in ...


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