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National Bank of Albany Park v. Newberg

SEPTEMBER 15, 1972.

NATIONAL BANK OF ALBANY PARK IN CHICAGO, PLAINTIFF-APPELLEE,

v.

PAUL K. NEWBERG, DEFENDANT-APPELLEE, AND FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, GARNISHEE-APPELLEE, — (EUGENE F. WELTER, INTERVENOR-APPELLEE, AND CITIZENS BANK & TRUST COMPANY, INTERVENOR-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

Citizens Bank & Trust Company (hereafter Citizens) appeals from a final order entered on March 3, 1971, in a garnishment proceeding wherein the court awarded $14,523.33 to plaintiff-garnisher, National Bank of Albany Park (hereafter Albany), and $17,003.28 to attorney Eugene Welter. An interim order of December 15, 1970, had awarded an additional $18,173.39 to Welter. Citizens and Welter were intervenors in the garnishment proceeding. Federal Savings and Loan Insurance Corporation (hereafter FSLIC) as the garnishee has taken no position in this case and has not appeared in this court.

On appeal Citizens contests the propriety of the final awards to both Albany and Welter; no issue is raised as to the interim order. Also, Albany contends that if we should find the final award to Welter erroneous, it is entitled to said fund.

The facts are essentially undisputed.

Citizens Bank became a judgment creditor of Paul Newberg for $687,247.13 on August 31, 1965. Later in 1965 supplementary proceedings to discover assets of Newberg were begun and after various extensions occurred culminated in a final order of June 26, 1969, which will be set forth in relevant part shortly hereafter.

Meanwhile Albany recovered a judgment against Newberg for $127,349.21 on January 20, 1966.

Eugene Welter entered into a contract with Newberg dated April 19, 1966. It provided that Welter represent Newberg in various pending actions in which Newberg was a defendant; payment was to be on an hourly basis. It further provided that Welter represent Newberg as plaintiff in certain other pending actions. As to these actions Welter was to receive one-third of the proceeds plus expenses.

On August 8, 1967, Newberg assigned to Welter all his rights and interests in two actions in which Newberg was plaintiff (No. 66 L 10473, a Cook County case, and No. 66 C 1222, a Federal district case) as security for legal charges made and to be made.

The final order of June 26, 1969, in Citizens' supplementary proceedings to discover assets of Newberg, referred to above, reads in relevant part as follows:

"IT IS HEREBY ORDERED * * *:

(1) That there be delivered or paid to [Citizens] * * *, Plaintiff-Judgment Creditor, the proceeds (exclusive of attorneys' fees, costs and expenses as allowed in paragraph (2) of this order) which said Paul K. Newberg and/or Paula Newberg are in possession or of which they may come in possession by reason of settlements arising out of or judgments entered in connection with any causes of action or claims which * * * [the Newbergs] * * *, have or may in the future acquire, described as follows: * * *

(c) Any causes of action or claims set forth which may hereafter be set forth in a certain Complaint pending in the Circuit Court of Cook County * * * bearing No. 66L-10473; and

(d) Any causes of action or claims set forth which may hereafter be set forth in a certain Complaint pending in the United States District Court, Northern District of Illinois, Eastern Division, * * * bearing No. 69C 1043;

(2) There shall be deducted from the proceeds paid to and to be paid to CITIZEN'S BANK & TRUST COMPANY, one-third (1/3) of the gross proceeds and of any other items of value obtained from any of the foregoing described sources or by reason of any of the foregoing described claims or causes of action for payment to EUGENE F. WELTER, for attorney fees in accordance with a contract of employment between said PAUL K. NEWBERG and said EUGENE F. WELTER, and which payment is secured by an assignment of his interest in said cause or causes of action by PAUL K. NEWBERG to EUGENE F. WELTER. In addition, there shall be deducted from said described proceeds the amount of reasonable costs and expenses incurred or advanced by said EUGENE F. WELTER in the prosecution of the foregoing claims or causes of action.

(3) PAUL K. NEWBERG be and is hereby ordered to assign and turn over to CITIZEN'S BANK & TRUST COMPANY, or at the direction of said CITIZEN'S BANK & TRUST COMPANY, any proceeds due personally to him from the claims or causes of action ...


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