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Baird v. Senne

JULY 5, 1973.

MARGARET BAIRD, PLAINTIFF-APPELLEE,

v.

DANIEL W. SENNE, DEFENDANT-APPELLANT — (FIRST ARLINGTON NATIONAL BANK, GARNISHEE-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. MARTIN G. LUKEN, Judge, presiding.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 26, 1973.

Defendant appeals from an adverse judgment in a garnishment proceeding. He contends that the judgment should be reversed because the funds involved were not properly subject to garnishment and the order appealed from is technically incorrect.

Plaintiff confessed judgment on defendant's promissory note in the principal amount of $2000. A garnishment suit was instituted against First Arlington National Bank (hereinafter garnishee bank). Summons and garnishment interrogatories were served on the garnishee bank on December 14, 1971. The garnishee bank's answers to the interrogatories indicated that it had possession, custody or control of defendant's escrow checking account containing $1716.09. On January 11, 1972 the garnishee bank filed a motion stating that defendant had asserted that the checking account was a trust account not subject to garnishment. Defendant indicated that he would take legal action against the garnishee bank if the money in his account was paid to plaintiff. The bank requested the court to direct it as to whom it should pay the money. The trial court entered an order finding that $167.34 of the money in the account was the property of defendant and, as such, was subject to garnishment. The court also found that the remaining $1548.75 in the account might be subject to a claim that it was being held in trust for Slaton Furs. The court ordered that notice be given to Slaton Furs and continued the hearing to January 21, 1972.

At the January 21 hearing, William H. Slaton appeared and testified that he was the owner of Slaton Furs. He further testified that defendant brought a prospective fur coat buyer to Slaton Furs in December, 1971. The buyer purchased a fur coat and indicated that he desired to present it to his wife as a surprise Christmas gift. To ensure the surprise, the buyer issued a check in the amount of the purchase price of the coat to defendant who in turn issued a check to Slaton Furs which was dated December 9, 1971 and was drawn on his escrow account with the garnishee bank in the amount of $1548.75. Defendant's check was subsequently dishonored by the garnishee bank on December 16, 1971.

Defendant testified that Mr. Slaton notified him that the check had been dishonored. He borrowed money and used it to pay Slaton for the coat. He had not repaid that loan as of January 21, 1972.

Plaintiff presented no evidence at the hearing.

After hearing the above evidence and the argument of counsel, the trial court entered an order finding that Slaton Furs had no interest in the funds on deposit with the garnishee bank and that such funds were the property of defendant subject to garnishment. The garnishee bank was ordered to pay the money remaining in the account, $1548.75, to plaintiff.

Defendant contends that the proper date to use in resolving conflicting claims to a garnished bank account is the date on which a garnishment summons is served on the garnishee bank. He argues that on the date the summons was served on the garnishee bank in the instant case the funds in his checking account were held in trust by him for Slaton Furs and, therefore, were not subject to garnishment.

The applicable Illinois statute provides:

"(a) To the extent of the amount due upon the judgment and costs, the garnishee shall hold, subject to order of court (1) any non-exempt indebtedness or (2) other non-exempt property in his possession, custody or control (a) belonging to the judgment debtor or (b) in which the judgment debtor has any interest. The judgment or balance due thereon (1) becomes a lien on the indebtedness and other property held by the garnishee at the time of service of garnishment summons and (2) remains a lien thereon pending the garnishment suit.

(b) The garnishee shall file, on or before the return date, or within the further time that the court for cause may allow, a written answer under oath to the interrogatories, setting forth as of the date of service of the garnishment summons (1) any indebtedness due or to become due to the judgment debtor and (2) any other property in his possession, custody or control (a) belonging to the judgment debtor or (b) in which the judgment debtor has an interest." Ill. Rev. Stat. 1971, ch. 62 par. 39. (Emphasis supplied.)

• 1, 2 It has been held that the garnishment statute is to be strictly construed and its application is limited to debts owing at the time the garnishment answer is filed. (National Home, Inc. v. American National Bank & Trust Co., 16 Ill. App.2d 111, 147 N.E.2d 412.) Thus, the question for our decision is whether the funds in defendant's account on December 14, 1971 belonged to him and were, therefore, subject to garnishment.

Initially we note that there is no dispute over the court's finding that $167.34 of the money in defendant's account was defendant's property and was subject to garnishment. This appeal ...


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