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VINYLWELD, INC. v. METROPOLITAN GREETINGS

July 26, 1973

VINYLWELD, INC., PLAINTIFF,
v.
METROPOLITAN GREETINGS, INC., DEFENDANT.



The opinion of the court was delivered by: Austin, District Judge.

MEMORANDUM and ORDER

This matter concerns the judicial construction of certain provisions of the Illinois Attachment Act and the Illinois Business Corporation Act.

I.

Plaintiff, an Illinois corporation, is a manufacturer of vinyl plastic products. In mid-1972, Defendant, a Massachusetts corporation, agreed to buy certain goods which Plaintiff agreed to manufacture and sell. At the conclusion of their dealings, a dispute arose as to the amount due to Plaintiff under the agreement. This action is the result of that dispute.

On March 19, 1973, Vinylweld commenced this litigation in the Circuit Court of Cook County by filing a Writ of Attachment upon an Illinois resident who was indebted to Metropolitan. The writ, issued on Vinylweld's affidavit, alleged that Metropolitan "is not a resident of this State and his place of residence is 215 First Street, Cambridge, Massachusetts." Although Metropolitan did not possess a Certificate of Authority to do business in Illinois at any time during 1972, it received such authorization on January 2, 1973. See Ill.Rev.Stat., ch. 32, § 157.102 (1953).

Defendant did not appear before the State Court and filed a petition for removal to this Court pursuant to 28 U.S.C. § 1441. Defendant now asks this Court to quash the Writ of Attachment. The sole issue for determination is whether a foreign corporation holding an Illinois Certificate of Authority is a "resident" for purposes of the Illinois Attachment Act. For reasons stated below, the question is answered in the affirmative and the writ is vacated.

II.

Attachment in Illinois is an extraordinary writ by which the owner of property is involuntarily dispossessed prior to any adjudication of the rights of the parties. As such, the State Legislature has seen fit to circumscribe its use by conditioning its existence and validity upon compliance with a specific statutory grant. Culver v. Rumsey, 7 Ill. App. 422 (1880); Martin v. Schillo, 389 Ill. 607, 60 N.E.2d 392, cert. denied 325 U.S. 880, 65 S.Ct. 1572, 89 L.Ed. 1996 (1945). The first section of the Illinois Attachment Act, Ill.Rev.Stat., ch. 11, § (1), par. 1, provides that:

    In any court having competent jurisdiction, a
  creditor having a money claim, whether liquidated or
  unliquidated, and whether sounding in contract or
  tort, may have an attachment against the property of
  his debtor, or that of any one or more of several
  debtors, either at the time of instituting suit or
  thereafter, when a claim exceeds $20, in any one of
  the following cases:
  First: Where the debtor is not a resident of this
  State.
 
  In addition, the Illinois Business Corporation Act,
Ill.Rev.Stat., ch. 32, § 157.103, stipulates in pertinent part
that:

   . . . A foreign corporation which shall have
  received a certificate of authority under this Act
  shall . . . enjoy the same, but no greater, rights
  and privileges as a domestic corporation. . . .

Read together, the import of these statutes is clear: foreign corporations — whether "residents" or not — that do business in Illinois are subject, in one way or another, to all the liabilities, restrictions, and obligations imposed upon domestic corporations. Charles Friend & Co. v. Goldsmith & Seidel Co., 307 Ill. 45, 138 N.E. 185 (1923); People v. New York Title & Mortgage Co., 346 Ill. 278, 178 N.E. 661 (1932). Where a foreign corporation is not a state resident, the Attachment Act subjects its Illinois property to court supervision during the pendency of the lawsuit. Where the corporation has complied with registration provisions of the Revised Statutes, it is deemed to be a resident and there is neither need nor statutory authority for the extraordinary process of attachment since the court possesses personal jurisdiction over all parties and is able to fashion and enforce whatever remedies are appropriate.

Thus, the generally accepted rule is that, to constitute a ground for attachment, nonresidence must exist at the time the writ is issued. Witbeck v. Marshall-Wells Hardware Co., 188 Ill. 154, 58 N.E. 929 (1900). See also 7 C.J.S. Attachment ยงยง 29 et seq. Under this reasoning, the Writ of Attachment here was improperly issued since the Defendant was duly licensed and residing in Illinois on and before March 19, 1973. In short, Defendant was fully amenable to the personal jurisdiction of any competent court in this State. The cases of Ford v. Transocean Airlines, Inc., 28 Ill. ...


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