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12/23/87 Gene C. O'connell Et Al., v. Pharmaco Et Al.

December 23, 1987

GENE C. O'CONNELL ET AL., PLAINTIFFS-APPELLEES

v.

PHARMACO ET AL., DEFENDANTS (JOAN LARSON ET AL., DEFENDANTS-APPELLANTS)

AS THIS COURT HAS ALREADY AFFIRMED THE JUDGMENT AGAINST LARSON (O'CONNELL

v.

PHARMACO, INC. (1986), 143 ILL. APP. 3D 1061, 493 N.E.2D 1175), ONLY THOSE FACTS PERTINENT TO THE SPECIFICS OF THIS APPEAL SHALL BE ADDRESSED.



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

517 N.E.2d 688, 164 Ill. App. 3d 68, 115 Ill. Dec. 277 1987.IL.1913

Appeal from the Circuit Court of Champaign County; the Hon. Donald R. Parkinson, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. LUND and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

On March 15, 1979, the circuit court of Champaign County entered a judgment for rent and possession on behalf of the plaintiffs and damages of $34,384 against defendant Pharmaco. Citation proceedings commenced thereafter, and on August 6, 1985, a judgment was entered against defendant Roger Larson personally for $34,384 plus costs and interest. Larson appealed the judgment, which was affirmed by this court (O'Connell v. Pharmaco, Inc. (1986), 143 Ill. App. 3d 1061, 493 N.E.2d 1175, cert. denied sub nom. Larson v. O'Connell (1987), 479 U.S. 1091, 94 L. Ed. 2d 158, 107 S. Ct. 1303). Upon remand to the circuit court for execution of judgment, Larson filed a motion to vacate and enjoin the sale of his residence in satisfaction of the judgment. Following denial of his motion, Larson filed notice of interlocutory appeal. With consent of plaintiffs, the sale of property was stayed, pending the outcome of these proceedings.

On October 2, 1987, Larson filed a motion to be taken with the case. The motion to strike asserts waiver of plaintiffs' estoppel argument, res judicata with respect to the issue of setoff, and that certain evidence was improperly presented. We deny the motion to strike and shall address all issues raised.

Larson raises four issues on appeal: (1) whether the citation judgment entered on August 6, 1985, is void due to the death of one of the plaintiff judgment creditors; (2) whether Larson is entitled to a setoff against the citation and judgment; (3) whether the court properly allowed the introduction of exhibits to show plaintiffs were doing business as a joint venture; and (4) whether the court erred in not requiring interrogatories to plaintiffs to be sworn under oath. We affirm.

In his motion to enjoin, Larson asserted the judgment entered on August 6, 1985, subsequent to citation proceedings, was void because of the prior death of plaintiff Gilbert J. Oberlin. Larson noted the original complaint and judgment entered in forcible entry and detainer on March 15, 1979, named the plaintiffs individually. There was no indication the plaintiffs were involved in any partnership or joint venture. Larson alleged the lease attached to the complaint was signed by each plaintiff individually. The judgment order entered likewise did not name any entity and was entered on behalf of the plaintiffs individually.

Larson asserted that plaintiff Oberlin died on December 14, 1980. Evidence indicated Oberlin's estate was opened on February 20, 1981, and closed on December 23, 1983. On August 9, 1985, the plaintiffs, again named individually (including Oberlin), filed a "statement of interest due on judgment." The court was not at this time informed of plaintiff Oberlin's death and entered judgment on behalf of the plaintiffs as named. On September 10, 1985, however, Larson filed an appeal bond, which was drafted by the plaintiffs' attorneys, and named the plaintiffs individually, but substituted "the heirs and legatees of Gilbert J. Oberlin, deceased" for plaintiff Oberlin.

Based upon these allegations, Larson claimed the judgment was entered on behalf of a deceased plaintiff, thereby rendering it void. Since the court was not properly advised of Oberlin's death and since the executor of Oberlin's estate did not appear on behalf of the deceased, Larson maintained the judgment could not be enforced.

It is a bit disconcerting in reviewing a record which shows that an original judgment was entered March 17, 1979, that plaintiff Oberlin died December 14, 1980, that further proceedings were had with no suggestion of Oberlin's death by either plaintiffs or defendants, that a citation judgment was entered on August 6, 1985, and affirmed by this court, and now in post-judgment proceedings, the suggestion of death of Oberlin is made. Because of Larson's assertion the citation judgment is void, it is necessary to determine its merit.

On May 18, 1987, the first hearing on Larson's motion to enjoin commenced. Upon being informed of the death of Oberlin, the court ordered that interrogatories be sent to all plaintiffs to determine who was living. After Discussion on the matter, the court allowed plaintiffs' attorney to verbally contact each plaintiff. The court did not require written answers or verification of any interrogatories. The court set the sale of Larson's property aside pending the discovery of evidence regarding the status of each plaintiff.

On June 7, 1987, the court convened to rule upon Larson's motion to enjoin as well as his motion to strike exhibits attached to the plaintiffs' response. In his motion to strike, Larson maintained the exhibits were irrelevant and improperly before the court. The exhibits included documents evidencing an intent on behalf of the plaintiffs to carry on business as a joint venture. The plaintiffs argued the death of one associate of a joint venture does not cause legal proceedings to abate, since the action survives as to ...


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