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Farmer City State Bank v. Henry





Appeal from the Circuit Court of De Witt County; the Hon. William C. Calvin, Judge, presiding.


Rehearing denied December 30, 1985.

Defendants have appealed certain orders of the circuit court of DeWitt County, the net effect of which were to sell nonexempt personal property of the defendants to satisfy a judgment by confession entered by that court upon the defendants' note in the face amount of $60,000. The plaintiff has filed in this court a motion to dismiss the appeal for lack of jurisdiction. That motion was taken with the case, and our ruling is set forth below.

The facts are prolix and involve another case decided by this court on even date with the instant one. Farmer City State Bank v. Champaign National Bank & Henry (1985), 138 Ill. App.3d 847.

For convenience we shall refer to the instant case as Henry I and the companion case as Henry II.

On July 24, 1980, the plaintiff Farmer City State Bank (bank) loaned $60,000 to defendants John and Evelyn Henry (Henrys), who executed their promissory note in favor of the bank in that amount. The note contained the standard confession provision. On the same date the Henrys executed a first mortgage to the bank to secure the loan. They had a prior loan from the bank and on the same date they executed a junior mortgage to the bank to secure that loan which was in the amount of $345,000.

On March 1, 1982, the bank took judgment by confession on the $60,000 note and following that, on April 14, 1982, filed suit in the circuit court of DeWitt County to foreclose both mortgages. The property was ultimately sold under foreclosure on November 28, 1983, to the bank for $170,000. Deficiency decrees were entered against John Henry in the amount of $95,464.14 and against Evelyn Henry in the amount of $86,998.37. These deficiencies were the subject of the appeal in Henry II. An examination of the opinion in that case reveals that those were affirmed.

Following the entry of the judgment by confession for $60,000, the trial court entered a second judgment order adding to the original judgment $6,680.83 in interest and $330 in attorney fees for the bank. Protracted supplementary proceedings were instituted by the bank in an effort to collect the judgment. These are the principal subject matter of the instant appeal together with the motion to dismiss. Since we have concluded that appellate jurisdiction is lacking for most of the orders entered during these proceedings, only a brief resume of them is necessary.

March 9, 1982: writ of general execution against the Henrys obtained by the bank. March 16, 1982: citation to discover assets against Evelyn Henry together with summons to confirm judgment. May 18, 1982: alias citation to discover assets against John Henry. June 16, 1982: motion by John Henry to quash execution and to open judgment. June 16, 1982: Henrys file voluntary bankruptcy. Ultimately dismissed on January 17, 1983. June 16, 1982: companion motion by Evelyn Henry to open judgment. February 10, 1983: trial court denied motions to vacate or open judgment. April 29, 1983: application by Henrys to quash levy. May 18, 1983: trial court denied application but stayed execution for seven days to allow Henrys to file amended application. May 25, 1983: amended application filed by Henrys. June 13, 1983: amended application denied by trial court. June 17, 1983: amended application again denied but sale of personal property stayed until after foreclosure sale. March 26, 1984: motion by Henrys to quash all proceedings subsequent to issuance of certified copy of judgment. June 29, 1984: motion to quash proceedings denied by trial court. November 30, 1984: petition for emergency relief filed by Henrys and denied by trial court. December 1, 1984: sale of personal property held — proceeds $97,247.75. December 21, 1984: Henrys filed objections to report of sale. January 9, 1985: hearing on objections. January 14, 1985: trial court entered order approving sale and directing disposition of proceeds; $44,604.26 to bank as partial satisfaction. January 18, 1985: Henrys filed amended notice of appeal covering all orders.

We turn attention first to the motion to dismiss the appeal. The bank argues in summary that all of the orders entered more than 30 days prior to the date of the notice of appeal cannot be the subject of appeal for lack of timeliness under Supreme Court Rule 303. (87 Ill.2d R. 303.) It further argues that the orders of January 1985 have not been contested in the Henrys' brief and therefore have been waived. The Henrys, on the other hand, argue that all of the prior orders are interlocutory and that the final order of January 14, 1985, carries with it all prior orders.

For the reasons set forth below, we hold that only the orders of January 9 and January 14, 1985, are within our appellate jurisdiction. We further hold that the issue of these orders has been properly raised by the Henrys by the allegation in their brief that the debt was satisfied by the foreclosure sale. The motion to dismiss is therefore allowed as to all orders other than those of January 9 and January 14, 1985; it is denied as to the latter.

The denial of a motion to open a judgment by confession is a final order and hence appealable. (Hill v. Ben Franklin Savings & Loan Association (1983), 112 Ill. App.3d 750, 445 N.E.2d 868; Larsh v. Green Gold Far ? s, Inc. (1966), 68 Ill. App.2d 113, 214 N.E.2d 924.) The rationale is that the denial of the motion allows the judgment to stand. The Hill court, while acceding to the rule, found the order there interlocutory because of the pendency of confirmation proceedings, and stated that the circumstances of the case were "novel." Hill v. Ben Franklin Savings & Loan Association (1983), 112 Ill. App.3d 750, 755, 445 N.E.2d 868, 872.

• 1 We do not find that the Hill exception applies to the instant case. Summons to confirm the judgment was issued against Evelyn Henry only and the trial court noted that there was never any formal action taken to confirm. Confirmation of a confessed judgment is required only where a plaintiff seeks to enforce it through a wage or nonwage deduction. (See Ill. Rev. Stat. 1983, ch. 110, par. 12-813.) Other methods of executing on the judgment are not foreclosed by the absence of formal confirmation proceedings. (City-Wide Realty Co. v. Fryer (1979), 70 Ill. App.3d 649, 388 N.E.2d 980.) The record in the instant case is clear that confirmation proceedings were never contemplated. The appeal time on the motions to open had long since passed when the notice of appeal was filed. We have no jurisdiction over those orders.

Next to be considered are the various motions and orders relating to the matter of quashing the levy and execution on the judgment. None of these orders was directly appealed. The Henrys seek to treat these orders as extensions of the supplementary proceedings which were ...

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