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Libby Furniture & Appliance Co. v. Nabors

SEPTEMBER 6, 1967.

LIBBY FURNITURE & APPLIANCE CO., A CORPORATION, PLAINTIFF-APPELLANT,

v.

RONALD NABORS AND OMA NABORS, DEFENDANTS-APPELLEES.



Appeal from the Municipal Court of Chicago, First Municipal District of the Circuit Court of Cook County; the Hon. BURTON H. PALMER, Judge, presiding. Judgment reversed and cause remanded with directions. GOLDENHERSH, J.

Rehearing denied October 13, 1967.

Plaintiff appeals from the judgment of The Municipal Court of Chicago, First Municipal District of the Circuit Court of Cook County, dismissing wage deduction proceedings brought under the provisions of the Garnishment Act. (C 62, Ill Rev Stats § 71, et seq.)

On June 21, 1965, plaintiff filed its complaint in which it alleged that the defendants, Ronald Nabors and Oma Nabors, detained from plaintiff a television set, that demand was made upon the defendants for its return, that defendants wilfully and maliciously refused to return to plaintiff the described chattel, and that its value was $182.20. The complaint is on a printed form headed "Complaint — Detinue."

Service was effected by personal service on defendants of a second alias summons. Defendants defaulted, and on October 7, 1965, the court entered a judgment order which, in part, provides: "`THE COURT FINDS THE DEFENDANTS GUILTY IN DETINUE OF PROPERTY DESCRIBED IN PLAINTIFF'S STATEMENT OF CLAIM.'

"Judgment against defendant for One Cent and damages and costs and that execution issue against defendant, RONALD NABORS, for restoration of certain personal property to plaintiff and if said property cannot be found for value thereof ONE HUNDRED FIFTY AND NO/100 DOLLARS ($150.00) together with said damages and costs."

On November 18, 1965, plaintiff filed an "Affidavit for Wage Deduction Order" requesting that summons issue directed to the employer of the defendant, Ronald Nabors, hereafter referred to as defendant.

Following service on his employer, defendant filed a motion praying that the summons be quashed on the following grounds:

"1. The wage deduction action is brought prematurely.

"2. The plaintiff has failed to order an execution for the restoration of the property sought in the within cause.

"3. The plaintiff has failed to cause to be served upon the defendant, an execution seeking restoration of the property sought in the within action."

Plaintiff filed a document styled "Objection to Motion to Quash Wage Deduction Summons" and on December 17, 1965, the court entered an order denying plaintiff's objection to the motion, and quashing the wage deduction summons. The order further provides: "It is further ordered by the Court that the wage deduction proceedings be and they are hereby dismissed.

"Appeal Bond set at TWO HUNDRED DOLLARS ($200.00)."

This appeal followed.

Defendant's contentions here are adequately stated in the quoted portion of his motion. Plaintiff contends that it was not necessary that execution be ordered by plaintiff or served on defendant prior to issuance of the wage deduction summons, and the court erred in ...


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