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Ingersoll Aluminum Products Co. v. Busse

OPINION FILED JUNE 30, 1977.

INGERSOLL ALUMINUM PRODUCTS CO., PLAINTIFF-JUDGMENT CREDITOR-APPELLANT,

v.

DELBERT JOHN BUSSE, DEFENDANT-JUDGMENT DEBTOR. — BANK OF GALESBURG, DEFENDANT-GARNISHEE-APPELLEE.)



APPEAL from the Circuit Court of Peoria County; the Hon. ROBERT E. HUNT, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is an appeal from the circuit court of Peoria County which vacated a final judgment obtained in a garnishment proceedings by Ingersoll Aluminum Products Co., hereinafter referred to as the plaintiff, and against the Bank of Galesburg, hereinafter referred to as the defendant-garnishee.

The factual and procedural background which resulted in this appeal commenced when the plaintiff obtained a judgment against John Busse in the sum of $4,962.17 plus costs of suit. On May 13, 1976, pursuant to our garnishment act (Ill. Rev. Stat. 1975, ch. 62, pars. 33 and 37(a)(b)), the plaintiff filed a nonwage affidavit for garnishment against the defendant-garnishee. Summons was issued which was served on May 27, 1976. The summons provided that answers to certain interrogatories were to be filed by the defendant-garnishee on or before June 4, 1976. The defendant-garnishee failing to respond during the time allotted, the plaintiff obtained a conditional judgment on June 7, 1976, and on the same date summons to confirm the conditional judgment was ordered to issue and service of process was had on the defendant-garnishee on June 22, 1976, which required an appearance to be filed on or before July 16, 1976. When the defendant-garnishee failed to enter its appearance a final judgment order in favor of the plaintiff and the debtor Busse was entered against the defendant-garnishee (Bank of Galesburg) on July 19, 1976.

On July 30, 1976, a citation to discover assets was issued which required the appearance of the defendant-garnishee on August 6, 1976. This hearing was continued to August 13, 1976, and during the interim, to-wit, on August 4, 1976, the defendant-garnishee filed a petition to vacate the judgment which the plaintiff had obtained. The plaintiff filed an answer to the petition to vacate and on August 13, 1976, after a hearing the circuit court of Peoria County vacated the July 19, 1976, final judgment against the defendant-garnishee. Thereafter the plaintiff duly perfected this appeal.

The sole issue in this appeal is whether the trial court properly or improperly vacated the final judgment order.

The defendant-granishee sought relief before the trial court pursuant to section 50 of the Civil Practice Act of Ill. Rev. Stat. 1975, ch. 110, par. 50(5), which provides:

"(5) The court may in its discretion, before final order, judgment or decree, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order, judgment or decree upon any terms and conditions that shall be reasonable."

It is the contention of the plaintiff that the trial court abused its discretion in granting the petition to vacate the final judgment order and the basis for this contention is that there was a failure on the part of the defendant-garnishee to make a showing that there was a reasonable excuse for its delay in making an appearance and that further there was no showing of the existence of a meritorious defense to the plaintiff's action.

The defendant-garnishee's petition to vacate the judgment did allege improper service of process in one instance and a complete failure of service of process on another instance. The trial court did hear testimony of witnesses and argument of counsel but made no specific findings when the petition to vacate was granted.

• 1 We have no way of knowing or ascertaining the grounds upon which the trial court predicated its order to vacate the final judgment against the defendant-garnishee, but we do not deem such knowledge to be of any consequence since the overriding consideration in vacating judgments pursuant to section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 50(5)) is whether or not substantial justice is being done between the litigants, and this consideration overrides and supersedes the questions of a meritorious defense and whether there exists a reasonable excuse for the delay in asserting it. See People ex rel. Reid v. Adkins (1971), 48 Ill.2d 402, 270 N.E.2d 841.

• 2, 3 In the instant case the defendant-garnishee was not guilty of lack of diligence. Sixteen days after the entry of the default judgment a petition to vacate the same was filed. Not only was the petition to vacate filed within 30 days but the order of the trial court vacating the judgment was also entered within the 30-day period. The trial court eliminated any question of hardship on the plaintiff by coupling with its order vacating the judgment the condition that the defendant-garnishee answer the interrogatories previously submitted by the plaintiff. In short, the plaintiff received what it had originally sought from the defendant-garnishee. Under the facts of this case we are persuaded that justice was served by the trial court's order vacating the default judgment particularly in view of the fact that the underlying obligation is not that of the defendant-garnishee.

The plaintiff complains of the trial court's action because it was indicated that it was the policy of the court to vacate default judgments if a proper motion is filed within 30 days of entry of judgment. We do not find such a policy to be improper. See Smith v. National Drag Racing Enterprises, Inc. (1974), 24 Ill. App.3d 91, 320 N.E.2d 43.

For the reasons set forth we are of the opinion that the trial court properly vacated the default judgment against the defendant-garnishee and the ...


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