APPEAL from the Circuit Court of Cook County; the Hon. MICHAEL
JORDAN, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Plaintiffs obtained judgments by confession on leases signed by Fryer and Jordan, and on a retail installment contract signed by Matos. In the cases involving Fryer and Jordan, plaintiffs began confirmation proceedings and Fryer and Jordan moved to file answers, affirmative defenses and counterclaims. The motions were denied and the trial court allowed time for Fryer and Jordan to file motions to open the judgments under Supreme Court Rule 276 (Ill. Rev. Stat. 1975, ch. 110A, par. 276), along with supporting affidavits and proposed responsive pleadings as required by Rule 276. In the alternative, the trial court provided that Fryer and Jordan could move the court to allow an interlocutory appeal of its ruling pursuant to Supreme Court Rule 308. (Ill. Rev. Stat. 1975, ch. 110A, par. 308.) We granted the application for leave to appeal.
In the case involving Matos, plaintiff served summons to confirm the confessed judgment, and Matos moved to file his answer and counterclaims in the confirmation action. Although the documents appear of record, the motion for leave to file was denied, and Matos was ordered to file a motion to open the judgment under Rule 276. Matos moved to vacate the order refusing to allow him to file responsive pleadings in the confirmation action. The motion was denied and Matos filed a motion to reconsider and to stay all proceedings. While these motions were pending, plaintiff orally moved to dismiss the confessed judgment. Matos' motion to reconsider was granted, and the court again denied his motion to vacate. Plaintiff's motion was granted, however, and the judgment by confession was vacated and dismissed and Matos appealed. The three cases have been consolidated in this court. We reverse and remand.
The principal issue raised on appeal is whether a defendant who has been served with a summons in a proceeding to confirm a judgment by confession may file responsive pleadings and proceed to trial without first opening the confessed judgment by prevailing on a motion filed pursuant to Rule 276. Defendants also raise two subordinate issues: (1) whether the procedure followed by the trial court was violative of the due process and equal protection clauses of the United States Constitution; and (2) whether the trial court properly allowed plaintiff in the Matos case to dismiss the confessed judgment.
Defendants contend that the confirmation proceedings are brought under section 12 of the wage deduction act (Ill. Rev. Stat. 1975, ch. 62, par. 82) which requires a trial de novo, and that defendants' pleadings should therefore have been allowed. Plaintiffs, on the other hand, maintain that Rule 276 and section 12 are inconsistent and that the procedures set out in Rule 276 should therefore prevail.
We note preliminarily that the summons for confirmation proceedings does not state whether the confirmation is sought as the basis for a wage deduction order under the wage deduction act or as the basis for a nonwage deduction pursuant to General Order No. 6.4(b) of the circuit court of Cook County effective August 24, 1972, following the decision in Scott v. Danaher (N.D. Ill. 1972), 343 F. Supp. 1272. However, because the wage deduction act establishes the procedure as well as the requirements for a confirmation proceeding, and because it was enacted before General Order No. 6.4(b) issued, we consider section 12 of the wage deduction act to govern the confirmation proceedings, whether for wage or nonwage deductions.
1 Section 12 of the wage deduction act provides in pertinent part:
"A judgment by confession without service of process on the defendant shall not be the basis for seeking a deduction order, unless such judgment is confirmed after service of process by a trial de novo, as if such confession of judgment had not been obtained * * *." (Ill. Rev. Stat. 1975, ch. 62, par. 82.)
The confirmation of a confessed judgment is a prerequisite for the issuance of a summons for a wage deduction order because a "judgment creditor" as defined by the wage deduction act cannot be a creditor who holds an unconfirmed confessed judgment. (People ex rel. Abbey & Hall v. McDonough (1962), 24 Ill.2d 503, 182 N.E.2d 161; Ill. Rev. Stat. 1975, ch. 62, par. 71.) In a trial de novo, both parties have the right to present any matters of evidence or law in support of their claims. (See Burstein v. Millikin Trust Co. (1954), 2 Ill.2d 243, 245, 118 N.E.2d 293, 294.) Consequently, if the instant case is controlled by section 12 of the wage deduction act, defendants should have been allowed to file their responsive pleadings.
Rule 276 provides in pertinent part:
"A motion to open a judgment by confession shall be supported by affidavit in the manner provided by Rule 191 for summary judgments, and shall be accompanied by a verified answer which defendant proposes to file. If the motion and affidavit disclose a prima facie defense on the merits to the whole or a part of the plaintiff's demand, the court shall set the motion for hearing. The plaintiff may file counteraffidavits. If, at the hearing upon the motion, it appears that the defendant has a defense on the merits to the whole or a part of the plaintiff's demand and that he has been diligent in presenting his motion to open the judgment, the court shall sustain the motion either as to the whole of the judgment or as to any part thereof as to which a good defense has been shown, and the case shall thereafter proceed to trial upon the complaint, answer, and any further pleadings which are required or permitted. If an order is entered opening the judgment, defendant may assert any counterclaim, and plaintiff may amend his complaint so as to assert any other claims, including claims which have accrued subsequent to the entry of the original judgment. * * * The original judgment stands as security, and all further proceedings thereon are stayed until the further order of the court, but if the defense is to a part only of the original judgment, the judgment stands as to the balance and execution may issue thereon. * * *." Ill. Rev. Stat. 1975, ch. 110A, par. 276.
It is immediately apparent that section 12 and Rule 276 afford plaintiffs and defendants, respectively, a means of pursuing their rights with regard to confessed judgments without forcing either party to wait for the other to act.
2, 3 The confirmation proceeding places the burden of going forward on the plaintiff, while Rule 276 places that burden on a defendant. It is not necessary for a plaintiff to confirm a confessed judgment unless he wishes to enforce that judgment through a wage or nonwage deduction, for other means of executing the judgment are not foreclosed to him. The confirmation proceeding is initiated by the plaintiff if and when he wishes to use a confessed judgment as the basis for seeking a wage deduction. Once summons issues, the confirmation proceeding is conducted as a trial de ...