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Robbins, Coe, Rubinstein & Shafran v. Ro Tek

OCTOBER 8, 1974.

ROBBINS, COE, RUBINSTEIN AND SHAFRAN, LTD., PLAINTIFF-APPELLEE,

v.

RO TEK, INC., DEFENDANT — (FIRST NATIONAL BANK IN PERU, GARNISHEE-DEFENDANT-APPELLANT).



APPEAL from the Circuit Court of Cook County; the Hon. NATHAN B. ENGLESTEIN, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

This appeal is taken from an order of the circuit court denying garnishee-defendant-appellant First National Bank in Peru's (hereinafter the bank's) motion to dismiss or in the alternative to transfer to the circuit court for LaSalle County the garnishment proceedings initiated against it in the circuit court of Cook County by plaintiff-appellee Robbins, Coe, Rubenstein & Shafran, Ltd. (hereinafter plaintiff).

The sole issue presented for review is whether section 94 of title 12 *fn1 of the United States Code applies to the situation where a national bank is a garnishee-defendant.

On March 28, 1973, judgment in the principal action was entered on behalf of the plaintiff in the circuit court of Cook County in the amount of $764 plus costs. On August 8, 1973, in accordance with statutory requirements, *fn2 plaintiff filed an affidavit for garnishment (nonwage) with the clerk of the circuit court of Cook County and caused to be issued a nonwage garnishment summons which was served upon the bank in LaSalle County, Illinois.

The bank filed a general appearance along with a motion to dismiss or transfer the garnishment proceedings. In its written motion the bank alleged its status as a national banking association; that it is located and maintains its only office in the city of Peru, county of LaSalle, Illinois; that, under title 12, section 94, of the United States Code (the Banking Act), no action or proceeding could be maintained against it in any county other than LaSalle County; and that the garnishment proceeding should therefore be dismissed or, in the alternative, transferred to LaSalle County.

In response to these allegations, appellee asserted that section 94 relates only to direct lawsuits against national banking corporations and, since a garnishment action is not a new or independent lawsuit but merely an ancillary proceeding to enforce a judgment obtained against a third party, the federal venue provision does not control.

The trial court, in denying the bank's motion, made the following specific findings of fact:

"1. That the Garnishee Defendant is a National Banking Corporation, organized under and subject to Title 12 of the United States Code.

2. That the garnishment proceedings herein were of a supplemental nature only and ancillary to the lawsuit filed in the Circuit Court of Cook County.

3. That service of garnishment summons was properly made upon Garnishee Defendant in LaSalle County, Illinois.

4. That Section 94 of Title 12 of the United States Code is not applicable as to a National Bank, which, as here is no more than a Garnishee Defendant."

It is from this order that the bank prosecutes this appeal.

I.

• 1 Section 94, title 12, of the United States Code provides for the venue of suits, actions, and proceedings against national banks. These venue provisions are mandatory (Mercantile National Bank v. Langdeau (1963), 371 U.S. 555, 561-62, 9 L.Ed.2d 523, 83 S.Ct. 520; Buffum v. Chase National Bank (7th Cir. 1951), 96 L.Ed 702, 192 F.2d 58, cert. denied, 342 U.S. 944) and are representative of congressional authority to prescribe the circumstances under which national banks can be sued (Mercantile National Bank v. Langdeau, supra, at ...


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