The opinion of the court was delivered by: J. Waldo Ackerman, Chief Judge.
This is an interpleader action filed by General Telephone
Company to determine who has priority among the competing
claimants as to $83,916.28 which General Telephone owes under a
contract entered into with C & R Cable Splicing Contractor on
March 23, 1976. The sum total of the claims exceeds the amount
due under the contract. The question simply is, under Illinois
law, which creditors' claims have priority. Although the question
is simple, the answer, unfortunately, does not lend itself to
The various claimants, the amounts of their respective claims,
the dates those claims arose, the dates those claims were
allegedly "perfected," and the manner in which those claims were
allegedly perfected are set forth as follows:
Date Date Manner
Claim "Per- Of Per-
Claimant Amount Arose fected" fection
J.A.W. $2,740.50 Judgment Sept. 6, 1978 Service of
Contractor plus 74.80 costs obtained Garnishment
2,815.30 Against Summons
C&R Cable on
Splicing, Inc. Gen. Tel.
July 2, 1978
Roland 3,600.71 Mechanic's Oct. 20, 1978 Notice of
Machinery lien on claim for
Company materials lien served
furnished on Gen.
between April Tel. and
10, 1978 and Charles
Aug. 20, 1978 Robinson
First State 19,947.87 Two judgments Oct. 19, 1978 Citation
Bank of obtained to discover
Maple Park Oct. 17, 1978 assets
Charles to Gen. Tel.
L.W. Williams 4,780.00 July 27, 1978 Nov. 9, 1978 Notice of
Contractor, Mechanic's mechanic's
Inc. lien lien served
on Gen. Tel.
McLean Co. 35,490.77 Judgment Jan. 10, 1979 Garnishment
Bank obtained summons
Oct. 24, 1978 served on
against Gen. Tel.
Gen. Tel. 603.00 Attorney's
Initially, I note that not only is Illinois law concerning the
creation of liens unclear, but additionally, the actions of
several parties in this case have served to confuse the issues
even more. On December 29, 1980, the Government filed a motion
for summary judgment in which it asserted that the parties who
had proceeded to enforce their claims by way of citation to
discover assets, namely J.A.W. Contractor and First State Bank of
Maple Park, took prior to the Government's tax liens, but all
other creditors took subsequent thereto. At oral argument, the
Government turned about face and adopted the position of McLean
County Bank. McLean County Bank, in its memorandum of January 28,
1981, asserted that the Government's tax liens took priority over
all other liens; that issuance of a citation to discover assets
does not create a lien; and, that its lien, created by service of
garnishment summons, was second in priority. It also stated that
J.A.W. had proceeded by way of citation to discover assets. In
response to inquiry by the Court via its order dated November 14,
1981, and filed November 16, 1981, McLean County Bank also did an
about face and now claims that its lien is prior to the
Government's second tax lien. Moreover, it turns out that J.A.W.
Contractor attempted to enforce its judgment by serving a
garnishment summons on General Telephone, not by way of citation
to discover assets.
Turning now to the legal issues in this case, an initial matter
raised by the Trustee is whether First State Bank of Maple Park
obtained a final judgment upon which execution could issue. The
Trustee contends correctly that a citation may issue only with
respect to "a judgment upon which execution may issue."
Ill.Rev.Stat. ch. 110A § 277(a)(1981).
The judgment order obtained by First State Bank and entered
October 17, 1978, specifically reserved the question of the
addition of reasonable attorney's fees and directed the plaintiff
to set the issue of attorney fees for prove-up. Moreover, the
words "execution may issue" were stricken from the judgment
"To be final, an order must conclude the litigation between the
parties so that only execution remains to be accomplished if
affirmed on appeal." Kulins v. Malco, Inc., 79 Ill.App.3d 982,
985, 35 Ill.Dec. 194, 398 N.E.2d 1144 (1979). Execution may issue
only as to final judgments. Wilson-Jump Co. v. McCarthy,
Hundrieser and Associates, Inc., 85 Ill.App.3d 179, 40 Ill.Dec.
230, 405 N.E.2d 1322 (1980). The Trustee here relies on
Ill.Rev.Stat. ch. 110A § 304 as support for his position that the
judgment obtained by First State Bank is not a final judgment.
Supreme Court Rule 304 provides that
[i]f multiple parties or multiple claims for relief
are involved in an action, an appeal may be taken
from a final judgment as to one or more but fewer
than all of the parties or claims only if the trial
court has made an express written finding that there
is no just reason for delaying enforcement or appeal.
However, Rule 304 applies where multiple parties or multiple
claims for relief are involved. "It is not designed to permit
appeals from orders that dispose of less than all the issues in
an action involving a single party and a single claim." Coble v.
Chicago Health Club, Inc., 53 Ill.App.3d 1019, 1021, 11 Ill.Dec.
734, 369 N.E.2d 188 (1977). The question of attorney's fees was
merely one issue in an action involving a single party and a
single claim. Thus, even a finding under Rule 304 would not have
made this judgment appealable. See Coble, 53 Ill.App.3d at 1022,
11 Ill.Dec. 734, 369 N.E.2d 188.
In Wilson-Jump Co. v. McCarthy Hundrieser and Associates, Inc.,
85 Ill.App.3d 179, 40 Ill.Dec. 230, 405 N.E.2d 1322 (1980), an
indemnity contract provided that the indemnitor would reimburse
the indemnitee for all loss, damages, expense and costs and
attorney's fees incurred. The court stated that under such a
contract, an indemnitee would be entitled to recover reasonable
attorney's fees. Id. at 182, 40 Ill.Dec. 230, 405 N.E.2d 1322.
The court held, though, that an indemnitee was still required to
establish the reasonableness of the fees incurred, stating that
an indemnitor is not necessarily liable for the amount the
indemnitee unilaterally agreed to pay its attorney. Id. The court
went on to state that "[i]n this cause reasonable fees had not
been established. Accordingly, it is clear that the order was not
a final one upon which execution could issue." Id.
In Songer v. State Farm Fire and Casualty Co., 91 Ill. App.3d 248,
46 Ill.Dec. 715, 414 N.E.2d 768 (1980), the trial court had
determined that Country Mutual was responsible for a pro rata
share of a loss resulting from a fire, but reserved the question
of whether Country Mutual was liable for plaintiff's attorney's
fees. When Country Mutual appealed the trial court's
determination of liability, the appellate court dismissed the
appeal without prejudice for lack of a final and appealable
judgment and granted leave to Country Mutual to obtain a final
judgment on the question of attorney's fees.
Similar to the indemnity case, in a confession of judgment
case, a plaintiff has the burden of establishing his entitlement
to a reasonable attorney's fee. Larkin Bank v. Ishak,
43 Ill. App.3d 918, 2 Ill.Dec. 620, 357 N.E.2d 840 (1976). Although
the trial judge specifically reserved the issue of attorney's
fees in the present case, First State Bank did not proceed with
its proof on that matter. Accordingly, it did not obtain a final
judgment upon which execution could issue. It follows, therefore,
that a ...