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Wicks v. Bank of Belleville

OPINION FILED DECEMBER 23, 1977.

RICK WICKS, PLAINTIFF-APPELLEE,

v.

BANK OF BELLEVILLE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of St. Clair County; the Hon. ROBERT J. SAUNDERS, Judge, presiding.

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

This is an appeal from an order entering summary judgment in the circuit court of St. Clair County and an order denying the motion to vacate that judgment.

Plaintiff, Rick Wicks, filed a small-claim complaint in St. Clair County demanding judgment of $1,000 and costs against defendant, Bank of Belleville. The basis for the complaint is an alleged breach of contract of deposit and wrongful withholding of monies deposited since August of 1974. Service upon the defendant was obtained by mail pursuant to Supreme Court Rule 284 (Ill. Rev. Stat. 1975, ch. 110A, par. 284).

The defendant by its attorneys notified the court by letter of December 8, 1975, that it denied the allegations of the complaint, and wished to contest the same. Also pursuant to the small claims Rule 286 (Supreme Court Rule 286, Ill. Rev. Stat. 1975, ch. 110A, par. 286), no formal answer was filed by the bank. That rule provides in part:

"If the defendant appears, he need not file an answer unless ordered to do so by the court; and when no answer is ordered the allegations of the complaint will be considered denied and any defense may be proved as if it were specifically pleaded."

Late in December 1975 plaintiff filed a motion for summary judgment by his attorneys, and attached thereto was an "Affidavit in Support of Summary Judgment" signed by the plaintiff, and notarized. The affidavit states the following facts:

1. Plaintiff deposited $9,005 with defendant prior to August 1974 in a passbook savings account.

2. Plaintiff withdrew $8,000 in August 1974.

3. Plaintiff's passbook was marked accordingly by bank employees at that time leaving a balance of $1,005.

4. Since the withdrawal, the bank has retained plaintiff's $1,005, despite demands by plaintiff that it be returned to him.

5. The defendant presently refused to pay plaintiff his $1,005.

6. Plaintiff knows of no setoff or counterclaim or justification for defendant's refusal to pay plaintiff $1,005.

7. Defendant does admit a debt of $5.

8. Plaintiff's passbook is in defendant's possession.

9. That defendant owes plaintiff $1,005 plus interest since August 1975.

10. That the affidavit is made on the personal knowledge of Rick Wicks, and that plaintiff, if sworn as a witness can testify ...


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