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Johnson v. First National Bank

OPINION FILED APRIL 27, 1984.

MASCO JOHNSON, PLAINTIFF-APPELLANT,

v.

FIRST NATIONAL BANK OF PARK RIDGE, U/T #205, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Benjamin S. Mackoff, Judge, presiding.

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from a nunc pro tunc order entered on September 14, 1982, amending the half-sheet of the restored file in this case to reflect that a $5,000 personal injury judgment, entered for plaintiff on July 19, 1976, was against the First National Bank of Park Ridge U/T No. 205, and not against the First National Bank of Park Ridge.

After notice of appeal was filed, plaintiff's motion to supplement the record with (1) a set of interrogatories date-stamped by the circuit court on March 31, 1976, which was allegedly served on the defendant, and (2) a photocopy of an executed memorandum of judgment, certified by the Cook County Recorder of Deeds and bearing the recording date of March 20, 1980, was allowed by the trial court on April 22, 1983, as to the interrogatories, but the admission of the memorandum of judgment as a part of the record was denied.

Plaintiff appeals from both the September 14, 1982, and April 22, 1983, orders.

On appeal, plaintiff urges that (1) it was error for the trial court to correct the restored half-sheet nunc pro tunc; (2) the First National Bank of Park Ridge is individually liable regardless of the order entered by the trial court on September 14, 1982; and (3) it was error for the trial court in its April 22, 1983, order, to refuse admission of the recorded memorandum of judgment into the record on appeal.

The following facts are pertinent to our decision.

Plaintiff, on or about January 10, 1974, brought a cause of action in tort, in the amount of $5,000 for personal injuries he sustained while on the real estate premises allegedly owned and managed by the defendant First National Bank of Park Ridge, U/T No. 205.

After receipt of an alias summons on or about June 18, 1974, defendant, by its attorney, filed its answer on July 18, 1974, in which it admitted ownership, operation, maintenance and control of the real estate premises, but denied all other allegations contained within plaintiff's complaint. Further, defendant did not allege a representative trustee capacity at this time.

The record contains only an unexecuted memorandum of judgment, bearing neither a circuit court time-stamp nor the signature of any municipal department judge. The memorandum purports to show that judgment was entered on July 19, 1976, in favor of plaintiff, and as against defendant "First National Bank of Park Ridge," in the amount of $5,000.

On December 7, 1981, the presiding judge of the circuit court of Cook County, municipal department, entered an order that the court clerk restore the lost file of the instant case, per the plaintiff's ex parte petition for restoration.

In restoring the file in accordance with plaintiff's petition, the clerk prepared a new half-sheet and placed in the file the following documents: complaint, summons, alias summons and answer — all indicating the defendant as "First National Bank of Park Ridge U/T # 205." The half-sheet, however, named the defendant as "FIRST NATIONAL BANK OF PARK RIDGE." In addition, plaintiff had also requested that answers to his interrogatories be included in the restored file; however, copies of these answers were not found.

On May 12, 1982, almost six years after the entry of the judgment, the plaintiff placed an execution with the Sheriff of Cook County in order to execute upon the defendant, "First National Bank of Park Ridge U/T #205."

The sheriff attempted to attach the general assets of O'Hare International Bank (O'Hare) (which succeeded to the interests of the First National Bank of Park Ridge, and for the purposes of this appeal, assumed its rights and liabilities) as opposed to merely attaching the assets of trust No. 205.

On August 16, 1982, O'Hare moved to quash execution, alleging that the suit was filed against defendant, solely as a trustee, and not against the bank individually; that no effort was made by plaintiff to determine the names or identities of the beneficiaries of said trust; that no execution was taken out until May 12, 1982, six years after entry of the judgment; that all assets of said trust were taken by condemnation in case No. 79L7868, parcel No. RH 33-8, on or about November 1980, and prior to the issuance of execution; and that said trust was a closed trust and assets of the bank not in said trust are not subject to execution. Thereafter, the trial court denied ...


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