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Gale v. Transamerica Corp.

OPINION FILED OCTOBER 5, 1978.

JAMES GALE, PLAINTIFF-APPELLANT,

v.

TRANSAMERICA CORPORATION, A/K/A TRANSAMERICA INSURANCE COMPANY, DEFENDANT-APPELLEE. — (ALBERT SADACCA, A/K/A TICO SADACCA, ET AL., DEFENDANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL COMAN, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

In the prior litigation underlying this case, Albert and Robin Sadacca (the Sadaccas) filed a complaint against James Gale (Gale) contending Gale owed them $31,200. To effectuate collection of the claimed indebtedness, the Sadaccas obtained the issuance of a writ of attachment and caused the seizure of certain Indian jewelry in Gale's possession. Transamerica Corporation (Transamerica) acted as surety on the Sadaccas' attachment bond. The trial court, in that underlying action, eventually quashed the Sadaccas' attachment writ, dismissed the Sadaccas' law suit, and, over Gale's objection, released Transamerica's attachment bond.

Gale subsequently filed this separate action in the circuit court of Cook County against Transamerica and the Sadaccas seeking damages incurred in consequence of the allegedly inappropriate and improper attachment proceeding by virtue of which Gale's property was wrongfully seized. The trial court, in this case, granted Transamerica's motion to dismiss, finding: (1) that the release of Transamerica's attachment bond in the prior litigation was a judicial determination that the attachment proceeding was not inappropriate, improper nor wrongful; and (2) that the aforesaid determination is res judicata and precludes Gale from maintaining an action for damages against Transamerica on its attachment bond.

Gale appeals, contending: (1) that the dismissal of the Sadaccas' case seeking payment of an alleged indebtedness and the quashing of the attachment writ in the prior action establishes that the attachment proceeding was wrongfully brought; and (2) that the release of the attachment bond, in that prior proceeding, is not a bar to Gale's present action against Transamerica for damages Gale incurred as a result of the attachment action.

We agree with Gale and, therefore, reverse and remand this case for further proceedings.

The pertinent facts disclose that in 1974 the Sadaccas filed a complaint in the circuit court of Cook County against James Gale, Sr., James Gale, Jr., and Gale Indian Arts. In connection with that proceeding the Sadaccas obtained the issuance of a writ of attachment, pursuant to the terms of which the sheriff seized certain Indian jewelry in the possession of James Gale, Jr.

In accordance with section 4a of "An Act in regard to attachments" (Ill. Rev. Stat. 1977, ch. 11, par. 4a), the Sadaccas filed an attachment bond on which Transamerica acted as surety. The attachment bond ensured that in the event it was later determined that the writ of attachment was wrongfully issued, the damages and costs incurred by Gale would be satisfied by the surety.

On January 31, 1975, the trial court in that underlying litigation: (1) dismissed the Sadaccas' complaint but granted them leave to file an amended complaint; (2) quashed the attachment writ; and (3) ordered that the seized property remain in the sheriff's possession pending further proceedings.

Following the filing of an amended complaint by the Sadaccas, a trial was held on the merits. On March 4, 1975, at the close of the Sadaccas' case, the trial court granted Gale's motion for a directed finding and ordered that the seized property be returned to Gale. Further, the trial court denied Gale's request that the attachment bond stand pending further proceedings. Instead, the trial judge ordered that the bond "be released instanter." The order does not explain why the bond was released. Gale's motion to have the bond reinstated was denied. The record in this case and the briefs of the parties fail to disclose both the basis upon which the attachment bond was released in the underlying litigation and the effect the trial court intended the "release" to have.

On February 24, 1976, Gale filed this separate action against Transamerica and the Sadaccas seeking damages allegedly incurred as a result of the aforementioned attachment proceedings. Transamerica's motion to dismiss was granted. Gale has taken this appeal.

OPINION

A proper understanding of the issue posed by this case necessitates a brief review of the law concerning wrongful attachments.

"An Act in regard to attachments" (Ill. Rev. Stat. 1977, ch. 11, pars. 1 et seq.) authorizes a creditor to attach the assets of an alleged debtor pending the outcome of the creditor's lawsuit against the debtor on an alleged money claim. The writ of attachment may be obtained by the creditor through a summary, ex parte application. *fn1

• 1 If an alleged creditor procures a writ of attachment but does not prevail on either the ground(s) assigned for the attachment (Ill. Rev. Stat. 1977, ch. 11, par. 1) or the merits of his alleged money claim, the quashing of the attachment and/or the dismissal of the complaint conclusively establishes that the attachment was wrongful. (Gilbert v. Estate of Yunk (1905), 214 Ill. 237, 73 N.E. 335; English Canning & Manufacturing Co. v. John Sexton & Co. (1921), 222 Ill. App. 110; Damron v. Sweetser, Caldwell & Co. (1885), 16 Ill. App. 339; Stelk, A Guide to the Attachment & Garnishment Law of Illinois § 4, at 14 (1916); 7 C.J.S. 2d Attachment § 517, at 664 (1937).) This is true even ...


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