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Manley Motor Sales Co. v. Kennedy

OPINION FILED APRIL 9, 1981.

MANLEY MOTOR SALES CO., PLAINTIFF-APPELLEE,

v.

JERRY KENNEDY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Boone County; the Hon. DAVID R. BABB, Judge, presiding.

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

The defendant, Jerry Kennedy, appeals from an order sentencing him for contempt of court as a result of his failure to appear in response to a citation to discover assets. (Ill. Rev. Stat. 1979, ch. 110, par. 73.) The single issue is whether defendant was properly served.

Plaintiff obtained a money judgment against the defendant on November 28, 1979. Following denial of post-trial motions a notice of appeal was filed on behalf of the defendant by his trial attorneys, Franks & Schmitt. On March 11, 1980, this court by its minute order found that "appellant has failed to comply with the rules of the Supreme Court or Orders of this Court," and ordered the appeal dismissed.

The citation to discover assets was issued on January 23, 1980. The sheriff's return, dated February 6, 1980, stated that defendant could not be found because he was on vacation until March 1. Another citation was issued on February 12, 1980, and mailed to defendant at the address of his trial attorneys, Franks & Schmitt. At a hearing on the citation held on February 27, 1980, the judge found that defendant had not been personally served but that there was service on his attorney. The judge ordered that Jerry Kennedy personally appear on March 12, 1980, and that the service of the order be made upon Kennedy at his last known place of residence and also upon his attorney, Franks & Schmitt.

Franks & Schmitt filed a special and limited appearance and a motion to quash on the grounds that the citation had not been served in accordance with Supreme Court Rules. (Ill. Rev. Stat. 1979, ch. 110A, pars. 277(c) and 105(b).) On March 12, the case was continued for further service, the judge indicating that plaintiff should attempt some further specific service on Kennedy. At this hearing, attorney Franks noted that he had withdrawn from other cases for the same defendant and that his firm planned to drop the appeal of the judgment because he had not been paid.

Another citation was issued on March 26, 1980, but was returned unserved because the defendant was out of town. A hearing was held on April 16, at which the judge noted that there was no personal service or service by mail and continued the cause to May 14. The docket entry also states that on the failure of Jerry Kennedy to be present on a rule to show cause on May 14 a warrant would issue, also noting that service on Kennedy should be by certified mail at his last known address.

A notice and copy of the February 27 order was sent to defendant directed to his home address by certified mail, return receipt requested. Other copies were directed to defendant in care of his attorney, and in care of a business where he was thought to be employed. There is nothing in the record to indicate that the defendant received his notice.

On May 2 Franks & Schmitt filed another special and limited appearance and a motion to quash on the same grounds of lack of proper service. This included an affidavit by the owner of the business that stated defendant did not work there or maintain an office there. At a hearing held on May 14, the trial judge denied the motion to quash and held that service on the attorney was proper, further issuing a rule to show cause. A copy of this rule to show cause was sent to defendant at home by certified mail. The envelope was returned marked "unclaimed."

Defendant did not appear at the May 28 hearing on the rule to show cause. A warrant issued, upon which defendant was arrested on June 6. Franks & Schmitt appeared for the defendant.

A contempt hearing was held on June 25, 1980, at which defendant did not appear. His attorney, now Karen Brenner, filed a special appearance and made a motion for leave to file an interlocutory appeal by permission, which was denied. Defendant was held in contempt and ordered to appear on July 9 for sentencing. The trial judge found that the defendant, by his attorney, had filed a general appearance. There was no order prepared and no findings of fact.

On July 9, 1980, the defendant appeared for sentencing, and was sentenced to the county jail for 90 days with a provision that the sentence might be purged by payment of the judgment plus costs and interest. A notice of appeal from the contempt order was filed and a stay of enforcement was granted.

Defendant contends that he was not properly served on the citation to discover assets pursuant to the February 27, 1980, order of the court and that therefore the trial judge lacked authority to enter the contempt order.

Section 73 of the Civil Practice Act provides that a supplementary proceeding shall be commenced by service of a citation issued by the clerk according to procedures prescribed by rules. (Ill. Rev. Stat. 1979, ch. 110, par. 73.) Supreme Court Rule 277 provides that in the supplemental proceeding under section 73 "[t]he citation shall be served and returned in the manner provided by rule for service, otherwise than by publication, of a notice of additional relief ...


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