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Carswell v. Rosewell

OPINION FILED MAY 1, 1986.

CARTRESE CARSWELL ET AL., PETITIONERS-APPELLEES,

v.

EDWARD J. ROSEWELL, COUNTY TREASURER, RESPONDENT-APPELLANT. — JEAN MURPHY, PETITIONER-APPELLEE,

v.

EDWARD J. ROSEWELL, COUNTY TREASURER, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Stephen R. Yates, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Respondent, Edward J. Rosewell, Cook County treasurer and ex officio collector, appeals from two judgments of the circuit court of Cook County. The trial court ordered him to pay petitioners, Cartrese and James Carswell (hereinafter the Carswells) and Jean Murphy, interest on two separate indemnity judgments that the court awarded under section 247a of the Revenue Act of 1939 (Ill. Rev. Stat. 1983, ch. 120, par. 728a). The court awarded interest to petitioners under section 2-1303 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1303). Respondent contends that the trial court erred in awarding interest to petitioners, because section 2-1303 of the Code does not apply to indemnity judgments under section 247a of the Revenue Act.

We affirm.

Section 247a of the Revenue Act provides a procedure by which a former owner of real property, who has lost his or her ownership interest due to the issuance of a tax deed that he or she cannot set aside, may obtain a monetary award from an indemnity fund. The section also requires that each buyer of a parcel at a tax sale pay $30 into the indemnity fund. This is the indemnity fund's only source of money. The county uses the fund to satisfy indemnity judgments under section 247a. The county treasurer holds and administers the fund, acting solely as trustee of the fund. Respondent administers the fund in Cook County. A person receiving a judgment for indemnity under section 247a must look solely to the money in the indemnity fund for payment. Ill. Rev. Stat. 1983, ch. 120, par. 728a.

The indemnity fund is inadequate to satisfy awards immediately. To avoid piecemeal depletion of the fund, respondent will satisfy an indemnity judgment only when the fund accumulates a sum sufficient to pay the judgment in full. Further, respondent satisfies indemnity judgments in the chronological order in which the court enters them.

The parties agree on the facts. Both the Carswells and Murphy owned property that the county sold due to delinquent taxes, pursuant to the Revenue Act. The trial court issued tax deeds to the buyers of their former properties. In separate actions, the Carswells and Murphy petitioned the trial court for indemnity. The trial court awarded the Carswells $38,000 on January 1, 1984. The indemnity fund, however, contained an insufficient sum to satisfy the award on that date. Respondent could not satisfy the judgment until December 12, 1984. The trial court awarded Murphy $36,621.83 on December 7, 1983. The indemnity fund likewise contained an insufficient sum to satisfy the award on that date. Respondent could not satisfy the judgment until December 12, 1984. On January 11, 1985, the Carswells and Murphy each petitioned the trial court for interest on their indemnity judgments.

The trial court found for petitioners in an opinion delivered from the bench on May 16, 1985, and made a part of the record. The court ruled that section 2-1303 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1303), which provides for interest on judgments generally, applies also to indemnity judgments. The court ordered respondent to pay interest to petitioners on their judgments from the dates the court entered the judgments to the dates respondent actually paid them. The court reasoned that the plain language of section 247a of the Revenue Act provided for interest on indemnity judgments and, further, that the rationale for post-judgment interest generally was consistent with section 247a. Respondent appeals from the judgments in both actions, which we consolidated for review.

Section 247a of the Revenue Act of 1939 provides, in pertinent part, as follows:

"(5) * * * The provisions of the Civil Practice Law, and all existing and future amendments of that law, shall apply to proceedings had upon the petition, except that neither the petitioner nor County Treasurer shall be entitled to trial by jury on the issues presented in the petition." (Ill. Rev. Stat. 1983, ch. 120, par. 728a(5).)

Section 2-1303 of the Code of Civil Procedure provides:

"Interest on judgment. Judgments recovered in any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied or 6% per annum when the judgment debtor is a unit of local government, as defined in Section 1 of Article VII of the Constitution, a school district, a community college district, or any other governmental entity. When judgment is entered upon any award, report or verdict, interest shall be computed at the above rate, from the time when made or rendered to the time of entering judgment upon the same, and included in the judgment. The judgment debtor may by tender of payment of judgment, costs and interest accrued to the date of tender, stop the further accrual of interest of such judgment notwithstanding the prosecution of an appeal or other steps to reverse, vacate or modify the judgment." Ill. Rev. Stat. 1983, ch. 110, par. 2-1303.

Respondent assigns error to the trial court's reasoning that (1) the plain language of section 247a of the Revenue Act provides for interest on indemnity judgments, and (2) the rationale for post-judgment interest generally is consistent with section 247a.

I

Respondent argues that the General Assembly did not intend section 2-1303 to apply to indemnity-fund judgments because the Civil Practice Law (Ill. Rev. Stat. 1983, ch. 110, pars. 2-101 through 2-1601) did not contain the post-judgment interest provision when the legislature created the fund in 1970. Rather, the legislature placed the post-judgment interest provision in other chapters of the Illinois Revised Statutes. The legislature added the post-judgment interest provision to the Civil Practice Law when it replaced the former Civil Practice Act with the Code of Civil Procedure. If the General Assembly intended the post-judgment interest provision to apply to indemnity fund judgments, then it could have amended section 247a of the Revenue Act to so provide. Rather, respondent argues, that section is silent on the issue of post-judgment ...


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