APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
526 N.E.2d 543, 172 Ill. App. 3d 352, 122 Ill. Dec. 284 1988.IL.1042
Appeal from the Circuit Court of Cook County; the Hon. Irwin Cohen, Judge, presiding.
JUSTICE LINN delivered the opinion of the court. JOHNSON and McMORROW, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN
Plaintiff, Bonni Seidmon, now known as Bonnie Kolb, received a judgment from the circuit court of Cook County against defendant, Mark Harris. The trial court subsequently entered a garnishment judgment for Kolb against the garnishee, Goldberg Brothers, Inc. Adverse claim plaintiffs, Harris and B.I.T. Enterprises, Inc., filed an adverse claim seeking the garnishment fund. B.I.T. claimed that a partnership existed between it and Harris. B.I.T. argued that the partnership owned the garnishment fund and not Harris.
Following a bench trial on the adverse claim, the trial court vacated its garnishment judgment for Kolb and entered judgment for B.I.T. Kolb appeals, contending that the trial court's findings and judgment were against the manifest weight of the evidence.
We reverse the judgment of the trial court and remand with directions.
The record shows that on January 17, 1985, the trial court entered judgment for Kolb and against Harris. The court awarded Kolb $24,050 plus costs. On April 25, 1985, Goldberg Brothers was served with a garnishment summons. Goldberg Brothers answered that it held a commodities trading account that Harris owned or therein had an interest.
On September 18, 1985, the trial court granted B.I.T. leave to intervene and file an adverse claim. (Ill. Rev. Stat. 1985, ch. 110, par. 12-710.) B.I.T. claimed that a partnership existed between it and Harris. B.I.T. alleged that the partnership owned the money in the commodities trading account and not Harris. On October 21, 1985, the trial court dismissed B.I.T.'s adverse claim with prejudice. The court also entered judgment in favor of Harris for the use and benefit of Kolb. The court awarded Kolb the amount of the original judgment, costs, and interest, which totaled $25,069.93.
Two days later, however, B.I.T. filed a second adverse claim, this time invoking the court's general equity powers. (Ill. Rev. Stat. 1985, ch. 110, par. 12- 718.) B.I.T. repeated its claim that the partnership, and not Harris, owned the money in the commodities trading account. After the trial court denied her motion to dismiss, Kolb answered B.I.T.'s adverse claim. Some discovery occurred. On May 20, 1987, the trial court denied Kolb's motion for summary judgment. On July 27, 1987, the court denied B.I.T.'s motion for summary judgment.
On July 28, 1987, a bench trial was held on the adverse claim. B.I.T.'s evidence is summarized as follows. In December of 1984, Harris and B.I.T.'s president, William Terman, discussed the formation of a trading venture. Terman presented Harris with a standard partnership agreement, which Harris read. Terman and Harris then discussed the document and agreed to its terms. They agreed that B.I.T. would provide the partnership's initial capital contribution of $26,000. They also agreed to divide partnership profits according to the allocations contained in the document. Additionally, Harris would receive a monthly draw, deducted from his share of future profits.
Harris and B.I.T. did not sign this partnership agreement. Terman testified that they did not sign the agreement because: (1) they trusted each other, and (2) it is standard practice in the ...