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J.d. Court, Inc. v. Investors Unlimited

OPINION FILED FEBRUARY 14, 1980.

J.D. COURT, INC., PLAINTIFF-APPELLEE,

v.

INVESTORS UNLIMITED, INC., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Sangamon County; the Hon. RICHARD J. CADAGIN, Judge, presiding.

MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

This appeal presents questions and problems arising out of a proceeding seldom seen in recent times and considered by many practitioners to be somewhat of an antique curiosity, namely, a writ of scire facias.

On March 3, 1971, Mervin Beil obtained a judgment by confession in cause #71-SC-524 against Investors Unlimited, Inc., in the circuit court of Sangamon County. By assignment, the judgment is now the property of the plaintiff in this cause. The defendant here is Financial Security Life Corporation through a series of corporate mergers and successions. No questions are raised concerning the identity or standing of the parties.

On April 2, 1971, one month following the entry of the judgment, Investors Unlimited, the then judgment debtor, filed a motion to vacate and set aside the judgment. This motion was set for hearing by the trial court on March 28, 1973, but so far as the record reveals, no such hearing was ever held.

The next entry on the docket reads, "Cause stricken." It is affixed by a rubber stamp and the date is illegible. The next and final entry on this docket was made November 21, 1978, and concerns a substitution of parties.

On the same day, November 21, 1978, the present plaintiff as assignee, filed in cause #716-78 a praecipe for a writ of scire facias for revivor of the judgment, accompanied by the requisite affidavit. The present defendant, as successor to the original defendant, was served with the writ, appeared and filed a motion to quash. After elaborate briefings on the law were made and presented, the trial court denied the motion and entered a judgment of revivor. This appeal ensued. We affirm with directions.

The principal thrust of the motion to quash was two-fold: (1) the trial court was without jurisdiction to enter the judgment since the warrant of attorney in the note had never been specifically authorized by the corporate defendant; and (2) there existed an outstanding motion to vacate and set aside the judgment. We believe that the first ground is without merit; we further believe that the second ground is factual but is ineffective as a basis for quashing the writ.

• 1 The great weight of authority follows this statement from Bank of Eau Claire v. Reed (1908), 232 Ill. 238, 240, 83 N.E. 820:

"`The only defense in the trial of the scire facias on a judgment is a denial of the existence of the judgment or proof of a subsequent satisfaction or discharge thereof.'"

Accord, Bank of Edwardsville v. Raffaelle (1942), 381 Ill. 486, 45 N.E.2d 651; Trustees of Schools v. Chamberlain (1948), 334 Ill. App. 83, 78 N.E.2d 525.

• 2, 3 The consequence, then, is that any defense to the action of scire facias for revivor must appear on the face of the record without reference to any matters aliunde the record. No such defense, i.e., denial of existence or satisfaction, appears here. The only matters are the affidavits attached to the motion to vacate which allege that the trial court was without jurisdiction, as mentioned above. Since this motion was never heard on its merits, such material cannot be considered in the scire facias proceeding itself.

• 4 A contention is made that section 55 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 55) has liberalized the former rule. That section reads as follows:

"Any relief which heretofore might have been obtained by scire facias may be had by employing an ordinary civil action."

We are unable to say with certainty the reason for the enactment of this section. In Smith v. Carlson (1956), 8 Ill.2d 74, 77, 132 ...


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