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Theofanopoulos v. Liddell

APRIL 9, 1969.

WILLIAM THEOFANOPOULOS AND SOFIA THEOFANOPOULOS, PLAINTIFFS-APPELLEES,

v.

HAROLD LIDDELL, ET AL., DEFENDANTS, AND NOEL SMITH AND SHERWOOD LAND COMPANY, A CORPORATION, GARNISHEES-APPELLANTS.



Appeal from the Circuit Court of Wayne County; the Hon. A. HANBY JONES, Judge, presiding. Judgment affirmed in part, reversed in part, and remanded with directions.

GOLDENHERSH, P.J.

Rehearing denied May 26, 1969.

Defendants, Noel Smith, hereafter called Smith, and Sherwood Land Company, a corporation, hereafter called Sherwood, appeal from a Garnishment Judgment entered in the Circuit Court of Wayne County.

Plaintiffs obtained and this court affirmed, a judgment against Harold Liddell, hereafter called Liddell, in the amount of $15,640 (Theofanopoulos v. Liddell, 44 Ill. App.2d 416, 194 N.E.2d 678). Liddell was engaged in litigation against Smith and Sherwood (Liddell v. Smith, 41 Ill. App.2d 408, 191 N.E.2d 260; Liddell v. Smith, 43 Ill. App.2d 57, 193 N.E.2d 45; Liddell v. Smith, 345 F.2d 491; Liddell v. Smith, 65 Ill. App.2d 295, 213 N.E.2d 599; Liddell v. Smith, 65 Ill. App.2d 352, 213 N.E.2d 604) which extended over a period of several years.

On December 7, 1962, plaintiffs filed an affidavit for garnishment and on that date garnishment summons was issued directed to Sherwood, and on March 5, 1963, garnishment summons was issued directed to Smith. In its answer to the garnishment interrogatories Sherwood stated that at the time of the service of the garnishment summons it was not indebted to Liddell, and had no property of his in its possession. Smith answered that he had in his possession a certificate evidencing Liddell's ownership of 150 shares of the capital stock of Sherwood which Smith claimed was pledged to secure a debt due him from Liddell, that there was litigation pending in which Liddell claimed Smith was indebted to him, and Smith denied such indebtedness.

Plaintiffs brought a citation against Smith, and in response to the writ he produced the certificate for Sherwood shares. The court ordered the stock sold, a sale was advertised, but at plaintiffs' direction the sale was canceled and the execution withdrawn. The certificate was deposited with the Clerk of the Circuit Court of Wayne County where it remained until February 10, 1967.

In a decree entered on April 20, 1963, Liddell was awarded a judgment against Sherwood in the amount of $14,650 and a judgment against Smith in the amount of $3,000. On April 23, 1963, Smith and Sherwood filed amended answers to the garnishment interrogatories setting forth the entry of the judgments. Subsequently this court affirmed the judgment against Sherwood and reversed the judgment against Smith (65 Ill. App.2d 295, 213 N.E.2d 599).

Shortly after the amended answers were filed, Liddell's attorneys, a bank, and three individuals, filed interpleas claiming assignments to them of Liddell's judgment against Sherwood.

On February 10, 1967, the circuit court entered a "Decree upon Settlement" purporting to dispose of the matters involved in the appeals above enumerated. At that time the attorneys, the bank and the individual creditors withdrew their interpleas.

On April 11, 1967, Smith and Sherwood filed an amended and supplemental answer to the interrogatories in garnishment, in which they stated that at the time of the service of the garnishment summons Smith held the above described stock certificate; it was delivered to the sheriff in compliance with a citation; a levy was made and a sale thereof advertised; the sale was canceled and the execution withdrawn; the certificate was delivered to the Clerk of the Circuit Court of Wayne County who retained it until it was delivered to Smith pursuant to an order entered on February 10, 1967, upon settlement of the issues between Liddell and the garnishees; Harold Liddell being indebted to Clyde Liddell assigned the certificate to Clyde Liddell, who, on April 7, 1966, assigned it to Smith; on October 15, 1962, Harold Liddell assigned to Fairfield National Bank $15,000 of his recovery; this and three other assignments are of record; the sum of the amounts assigned was $19,650.12, being in excess of Liddell's judgment against Sherwood; on February 10, 1967, Smith paid $14,650, the amount of Liddell's judgment against Sherwood for the benefit of Liddell and the assignees, and their interpleas were withdrawn and their claims released; in October 1962, Harold Liddell assigned to Clyde Liddell $26,000 of any recovery against Smith or Sherwood.

Plaintiffs filed a traverse to the answer denying the material allegations therein contained.

The issues were tried to the circuit court on the amended and supplemental answer, and the traverse. Smith was the only witness, and his testimony and the exhibits received in evidence show that Smith paid $35,000 to Liddell's attorneys, who for that sum obtained releases from Liddell's assignees, and released their claim for fees. He also entered into an agreement with Clyde Liddell, and paid him a sum of money for an assignment of the Sherwood stock. Judgment was entered in favor of plaintiffs and against both garnishee-defendants in the amount of $19,730.48 and costs, and the court ordered that in the event the judgment be not paid within 30 days, the stock certificate be delivered to the sheriff and sold, the proceeds of the sale to be used to satisfy the judgment and costs.

As one of the grounds for reversal, defendants argue that at the time of service of the garnishment summons it was not certain that Liddell would obtain a judgment, an indebtedness is not subject to garnishment unless at the time for filing an asnwer it is in existence and either due, or to become due subsequently, and not subject to any contingency.

Chapter 62, section 43, Ill Rev Stats 1967, provides that the provisions of the Civil Practice Act apply to proceedings under the Garnishment Act except as otherwise expressly provided. Although section 43 of the Garnishment Act provides that the answer of the garnishee is considered denied without further pleading, the issues on which this case was tried are formed by the amended and supplemental answer and the traverse. We are not confronted with the question of whether Sherwood was entitled to a discharge at the time of its original answer for the reason that no trial was had on the issues as presented at that time, no discharge was requested, and so far as the record reflects, the amended answer and the amended and supplemental answer were filed voluntarily, and not in compliance with any order of the court. Insofar as Smith is concerned, his answer showed ...


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