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Cheatem v. Cook

OCTOBER 23, 1974.

CLARA CHEATEM, PLAINTIFF-APPELLANT,

v.

JAMES A. COOK, DEFENDANT — (CORONET INSURANCE COMPANY, GARNISHEE DEFENDANT-APPELLEE).



APPEAL from the Circuit Court of Cook County; the Hon. WALLACE KARGMAN, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Plaintiff filed a garnishment action against Coronet Insurance Company to recover interest allegedly due on a prior judgment entered against James A. Cook, its insured. In a motion for summary judgment, plaintiff alleged that Coronet was obligated to pay interest from the date of the judgment against Cook until the date the judgment was finally paid. The trial court denied plaintiff's motion for summary judgment and dismissed the proceedings against Coronet on the grounds of res judicata and estoppel by verdict.

On November 24, 1965, James A. Cook was involved in an automobile accident with the plaintiff, Clara Cheatem. Plaintiff filed an action against Cook, who tendered his defense to Coronet Insurance Company pursuant to an automobile liability policy issued by Coronet to Cook for 1 year's coverage on June 30, 1965. Coronet denied liability on the policy and refused to defend the suit. A default judgment was entered against Cook on December 11, 1967 in the amount of $15,000, plus costs.

Plaintiff instituted garnishment proceedings against Coronet on December 26, 1967. The garnishment was defended by Coronet on the ground that the policy had been cancelled by Cook's broker prior to the time of the accident. Following a trial of the garnishment, the court found that the purported cancellation of the policy was ineffectual. On March 30, 1971, judgment was entered against Coronet and in favor of Cook in the amount of $10,000, the stated limit of the policy, plus costs.

Coronet filed a notice of appeal from that judgment on April 1, 1971. Subsequently, on April 14, 1971, plaintiff filed a motion in the trial court requesting that the judgment be modified to correct the form and also to include interest which had accrued on the default judgment of December 11, 1967, against Cook. The court ordered that judgment be entered in favor of the judgment debtor, James A. Cook, for the use of the plaintiff, Clara Cheatem. Further, the trial court denied plaintiff's motion to increase the amount of the judgment to include interest. Plaintiff then filed a notice of cross-appeal which requested judgment against Coronet in the sum of $10,000 plus interest on the $15,000 judgment "from December 11, 1967, until the date judgment is entered herein plus costs or, in the alternative, that said judgment be reversed and remanded to the Circuit Court of Cook County, Illinois, with instructions to enter that judgment."

On November 1, 1972, this court filed its opinion, reported in 8 Ill. App.3d 425, 290 N.E.2d 707, wherein the judgment of the trial court was affirmed in part and reversed in part. The trial court's action of March 30, 1971, in entering judgment of $10,000 and costs in favor of Cook, was affirmed. This court held:

"We find the cancellation of the policy by Coronet to be invalid and, therefore, hold the policy of liability insurance issued by Coronet to James A. Cook was in full force and effect on November 24, 1965, the date of defendant Cook's accident with the plaintiff." (8 Ill. App.3d 425, 429.)

However, the order entered by the trial court on April 14, 1971, which modified the form of the prior judgment and denied plaintiff's claim for interest, was reversed on the ground that the lower court was divested of all jurisdiction in the matter by the filing of a notice of appeal prior to the entry of its order.

Coronet's petition for rehearing in the appellate court was denied. It then filed a petition for leave to appeal to the supreme court, which was also denied. On August 9, 1973, Coronet paid Clara Cheatem $11,496.16: $10,000 as the principal of the judgment rendered against it on March 30, 1971; $69.16 as payment for costs; and $1427 as interest on $10,000 from March 30, 1971, to August 8, 1973, at 6 percent per annum. A written satisfaction (release) of judgment, signed by the plaintiff and her attorney, recited that plaintiff, "having received full satisfaction and payment, releases the judgment entered on March 30, 1971, against Coronet Insurance Company for $10,000.00 and costs and interest." The release was filed with the clerk of the circuit court on August 23, 1973.

On September 26, 1973, plaintiff filed a new garnishment action against Coronet. The affidavit for garnishment stated that judgment was entered on December 11, 1967, in the amount of $15,000 and costs, that $10,000 had been paid on the judgment, that $5000 remained unpaid on the principal judgment, and that $3,447.28 in interest was still owed. Plaintiff then filed a motion for summary judgment in the amount of $3,447.28 plus costs, alleging that Coronet was obligated to pay interest on the judgment of December 11, 1967, from the date it was entered until the date of final payment. Coronet filed objections to plaintiff's motion and a counter-motion for discharge on the ground that the claim which formed the basis for plaintiff's motion for summary judgment had been previously adjudicated. The court, on December 28, 1973, allowed Coronet's motion for discharge and ruled that plaintiff's claim was barred on the grounds of res judicata and estoppel by verdict.

Plaintiff appeals from the court's order of December 28, 1973, and presents the following issues for review: (1) Whether the trial court erred in finding that plaintiff's claim was previously adjudicated, and (2) whether the trial court erred in denying plaintiff's motion for summary judgment.

The first question we shall consider is whether the trial court erred in finding that plaintiff's claim for interest was previously adjudicated. That portion of the court's order of December 28, 1973 pertinent to this issue is presented below:

"2. The Court finds that heretofore on March 30, 1971, in a trial on the contest of the Answer of CORONET INSURANCE COMPANY, garnishee, on garnishment proceedings theretofore brought by the plaintiff herein against it, the trial Court found for the plaintiff and entered judgment against the garnishee for the sum of $10,000; that prior to and subsequent to the entry of such judgment, plaintiff had requested the trial Court allow to her interest on the original December 11, 1967 judgment for $15,000 herein rendered against the defendant, JAMES A. COOK, and that such judgment for $10,000 be increased to $12,755.31 on account thereof; the motion to increase the judgment to include interest was denied.

That thereafter, CORONET INSURANCE COMPANY, garnishee, appealed such judgment to the Appellate Court of Illinois, First District, in Cause No. 56139, which had before it all matters presently before the Court; that plaintiff filed a Cross-Appeal wherein plaintiff prayed that the Appellate Court enter judgment against the garnishee for the interest sought; that by its Opinion the Appellate Court affirmed the trial court, and by its Mandate adjudged that the original judgment for $10,000 of the Circuit Court of Cook County is affirmed; ...


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