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06/03/87 Central Production Credit v. Duane L. Kruse Et Al.

June 3, 1987

CENTRAL PRODUCTION CREDIT ASSOCIATION, PLAINTIFF-APPELLEE

v.

DUANE L. KRUSE ET AL., DEFENDANTS-APPELLANTS (DANIEL

v.

KRUSE ET AL., DEFENDANTS)



Before discussing the issues raised in appeal, we note that it is well settled that an order which results in the imposition of a sanction for contempt of court is final and appealable because it is an original special proceeding, collateral to and independent of the case in which the contempt arises. People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167; People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180.

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

509 N.E.2d 136, 156 Ill. App. 3d 526, 108 Ill. Dec. 710 1987.IL.750

Appeal from the Circuit Court of Carroll County; the Hon. John W. Rapp, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. HOPF and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Defendant, Duane L. Kruse, appeals from a finding of the circuit court of Carroll County that he was in contempt of court. This finding of contempt arose out of a civil action in which plaintiff, Central Production Credit Association (hereinafter CPCA), sought to foreclose a mortgage against the defendants and to, among other things, take possession of certain collateral.

Defendants are farmers who own approximately 500 acres in Carroll County, Illinois. Throughout the initial stages of litigation, they represented themselves pro se in a zealous, if not particularly able, manner.

On November 22, 1982, defendant executed and delivered to CPCA a promissory note in the amount of $372,321.99. On May 23, 1986, CPCA filed a complaint alleging that the individual defendants were indebted to CPCA on a promissory note, that the defendants had refused to pay the balance due under the note which amounted to $237,628.07 as of April 30, 1986, that CPCA held a valid and perfected security interest in all the assets described in the security agreement, and that CPCA was entitled to possession of those assets. The complaint requested an order of replevin and other relief. Certain deficiencies in its original pleading caused CPCA to file an amended complaint on July 7, 1986.

A hearing regarding CPCA's motion for order of replevin was held on August 14, 1986. Plaintiff sought possession of assets described in the security agreement which had been appraised at $95,600. At this hearing, the court found that the CPCA had established a prima facie case to a superior right to possession of the collateral and had demonstrated that it would ultimately prevail on the underlying claim to possession. The court entered an order of replevin.

On August 15, 1986, the sheriff took possession of some pieces of farm equipment valued at approximately $13,000. The value of the equipment to be possessed was estimated at $95,600.

On August 19, 1986, the court heard CPCA's petition for rule to show cause and a petition for injunctive relief. At this same hearing, the court denied defendants' motion for rehearing of replevin and a motion for stay of execution of the order for replevin. Both defendants exercised their fifth amendment right to remain silent regarding their alleged failure to comply with the order of replevin. The court issued a rule to show cause.

A hearing of the rule to show cause was held on September 9, 1986. Defendants, present pro se, were to show cause why they had ignored the order of replevin dated August 14, 1986, why they should not be held in contempt of court for failing to provide the court and CPCA with the location and condition of the collateral, and, finally, why they should not be held in contempt of court for failing to gather the collateral not found by the sheriff on August 15 and delivering it to the sheriff or CPCA. On the previous day, September 8, 1986, defendants had turned over or divulged the location of most of the missing collateral. The principal issue in the hearing was the location of five items: a 1981 I.H.C. 1486 tractor, a 1980 Graham chisel plow, a set of dual wheels, a

At the September 25, 1986, hearing Mr. Kruse testified as to his knowledge of the missing collateral. Defendant stated that he had received the order for replevin on August 27, 1986, and made arrangements with the sheriff and agents of CPCA to gather collateral or advise them of its location by September 8, 1986, the day prior to the hearing on the rule to show cause. Mr. Kruse further testified the missing dual tires and chisel plow were attached to the 1981 I.H.C. 1486 tractor the last time he had seen the tractor, which was in the latter part of May 1986. He did not report the tractor missing because he thought that CPCA had replevied the machine and also because he was embarrassed that his property was being repossessed. Defendant, who by ...


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