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Bank of Hickory Hills v. Hammann

OPINION FILED AUGUST 26, 1982.

BANK OF HICKORY HILLS, PLAINTIFF-APPELLANT,

v.

WILLIAM E. HAMMANN, DEFENDANT. — (HAWTHORNE BANK OF WHEATON, APPELLEE.)



Appeal from the Circuit Court of Cook County; the Hon. Joseph A. Salerno, Judge, presiding.

JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Plaintiff, Bank of Hickory Hills (Hickory Hills) having obtained judgment against its debtor, Hammann, served the Hawthorne Bank of Wheaton (Hawthorne) with a citation to discover assets. Five months later Hawthorne, which had not previously entered an appearance, filed a motion to quash the citation alleging improper venue. The trial court granted this motion and later denied Hickory Hills' petition for rehearing after hearing arguments of counsel. We reverse, holding that Hawthorne by its conduct, including its failure to move for change of venue, waived any improper venue.

On July 1, 1980, Hickory Hills filed for confession of judgment against Hammann in the circuit court of Cook County; there is no dispute that the venue was proper. Judgment was entered and later confirmed. Thereafter, on August 8, 1980, Hickory Hills served Hawthorne with a citation to discover assets pursuant to Supreme Court Rule 277 (73 Ill.2d R. 277). The citation was returnable on August 18, 1980, in Worth, Illinois, a town in Cook County. The citation contained the standard provision prohibiting Hawthorne from transferring or disposing of any of Hammann's assets.

Hawthorne did not appear on August 18. Rather on August 12, 1980, in compliance with a telephone conversation of the same date it sent photocopies of its entire file in regard to Hammann. It concluded the accompanying letter by stating, "it is our understanding that by furnishing this information directly to your office, we are now excused from appearing in Worth, Illinois on August 18th, 1980." Thereupon Hickory Hills obtained a continuance of the matter until September 22, 1980. A later continuance until October 6, 1980, was obtained by Hickory Hills at the request of Hawthorne. *fn1 On or about September 22, 1981, Hammann filed a petition in bankruptcy in Federal District Court and a stay was issued. That case was dismissed on or about December 8, 1980. Sometime at the end of January 1981 (no date of filing is shown in the record) Hawthorne filed a special and limited appearance and also a motion to dismiss because of improper venue. Under Supreme Court Rule 277 (73 Ill.2d R. 277), a Rule 277 petition against a third party must be filed in the county of that party's residence. Hawthorne's motion was heard and granted on February 2, 1981. At that time its attorney admitted that during the pendency of the citation proceedings, Hawthorne had caused to be conveyed property or assets belonging to Hammann in violation of the injunction provisions of the citation to discover assets.

As already noted, Hickory Hills filed a petition for rehearing. In this petition it contended that the venue was proper; that if it was not, Hawthorne had waived the improper venue; and if it had not, the sole and exclusive remedy would be a transfer of the citation proceeding to a court of proper venue; and asked that, if venue was improper, the case be so transferred. At the hearing on the petition Hawthorne argued that the case could not and should not be transferred. The trial judge accepted the argument and denied the petition for rehearing.

I

Hickory Hills contends that Hawthorne cannot raise the question of improper venue because the motion was untimely under section 8(2), of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 8(2)), because Hawthorne by its conduct prior to January 1981 waived any objection and because Hawthorne failed to seek a transfer of venue thus waiving any objection.

Section 8 of the Civil Practice Act provides in part that:

"Sec. 8. Wrong venue — Waiver — Motion to transfer. (1) No order or judgment is void because rendered in the wrong venue, except in case of judgment by confession as provided in paragraph (4) of Section 50 of this Act. No action shall abate or be dismissed because commenced in the wrong venue if there is a proper venue to which the cause may be transferred.

(2) All objections of improper venue are waived by a defendant unless a motion to transfer to a proper venue is made by him on or before the date upon which he is required to appear or within any further time that may be granted him to answer or move with respect to the complaint, except that if a defendant upon whose residence venue depends is dismissed upon motion of plaintiff, a remaining defendant may promptly move for transfer as though the dismissed defendant had not been a party." (Ill. Rev. Stat. 1981, ch. 110, pars. 8(1), 8(2).)

While Hawthorne did not file its motion to dismiss on August 18, it did, in light of the various continuances granted, file its motion within "any further time that may be granted him to answer or move with respect to the complaint." Thus Hawthorne's motion was timely under section 8(2) of the Act.

However we are inclined to agree with Hickory Hills' contention that Hawthorne by its delay coupled with its other acts is barred from raising the issue of improper venue. Any questions of improper venue must be raised promptly. (Wagner v. David (1966), 35 Ill.2d 494, 221 N.E.2d 248; H. Watson Development Co. v. Bank & Trust Co. (1978), 58 Ill. App.3d 423, 374 N.E.2d 767.) Hawthorne not only did not do this but by its correspondence led Hickory Hills to believe that Hawthorne raised no objection to the venue. Furthermore several of the continuances were obtained by Hickory Hills on Hawthorne's behalf at its request. Hawthorne was able to use this delay to dispose of the debtor's property. We do not agree with Hickory Hills' contention that Hawthorne's conduct in requesting the continuances and sending the information requested in the citation constituted such a participation in a legal process as to waive any objections to venue. But we are inclined to believe that Hawthorne's conduct causing Hickory Hills to rely to its detriment on Hawthorne's apparent acquiescence to the venue bars Hawthorne from challenging that venue.

• 1 However we need not decide that issue since in any event Hawthorne waived its objection to the allegedly improper venue when it failed to file a motion to transfer to a proper venue on or before the date it was required to answer. Section 8 of the Civil Practice Act clearly provides that where there is a proper venue and there is no question that here Du Page County would be a proper venue, the issue ...


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