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08/17/94 ANKA PODVINEC v. PREDRAG POPOV AND JOVANKA

August 17, 1994

ANKA PODVINEC, PLAINTIFF-APPELLEE/CROSS-APPELLANT,
v.
PREDRAG POPOV AND JOVANKA POPOV, DEFENDANTS. LA SALLE NATIONAL BANK, DUSAN ZIVKOVIC, MILAN M. RAKIC, AND MILORAD CUPIC, RESPONDENTS-APPELLANTS/CROSS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Alexander P. White, Judge Presiding.

Released for Publication September 27, 1994. Petition for Leave to Appeal Allowed December 6, 1994.

Cerda, Tully, Greiman

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

Respondents, La Salle National Bank, Dusan Zivkovic, Milan M. Rakic, and Milorad Cupic, appeal from an order of the circuit court of Cook County entering judgment against them based upon the imposition of a judicial lien on funds realized in a lawsuit brought against respondents by judgment debtors of plaintiff, Anka Podvinec. Plaintiff cross-appeals from the failure of the trial court to award post-judgment interest. We reverse the judgment against respondents.

The issue in this case is whether a lien can be created by court order in the absence of either an agreement between the parties or any statute.

On February 26, 1987, plaintiff, Anka Podvinec sued defendants, Predrag Popov and Jovanka Popov, in the law division of the circuit court of Cook County (case number 87 L 4357) based on a $55,000 instrument executed by defendants. On April 28, 1987, a memorandum of judgment in favor of plaintiff against defendants in the amount of $57,955 was entered.

On March 18, 1988, a citation to discover the assets of Predrag Popov was issued by the clerk of the circuit court. Alias citations to discover Predrag Popov's assets were issued on April 13, 1988, and on May 20, 1988. A citation to discover the assets of respondents LaSalle National Bank, Dusan Zivkovic, Milan M. Rakic, and Milorad Cupic was issued on November 28, 1988. La Salle was served with the citation on December 16, 1988, but there is no indication in the record that the other respondents were ever served with the citation.

On October 17, 1988, Predrag Popov brought suit in the chancery division of the county department of the circuit court of Cook County (case number 88 CH 9370) to foreclose a mechanic's lien against Citicorp Savings of Illinois, "unknown owners," and respondents.

On December 22, 1988, the trial court in the Podvinec law division case ordered the following:

"That the court hereby imposes a judicial lien upon any funds realized in the case of P. Popov v. LaSalle National Bank, et al. 88 CH 9370 in the amount of $57,955.00 plus costs (effective upon notice to proper parties)."

On January 31, 1989, the trial court in the Popov chancery division case "spread of record" the judicial lien in favor of plaintiff.

On April 18, 1991, the Popov chancery division case was dismissed due to the settlement of the case.

On June 27, 1991, Podvinec filed a petition in the law division case for enforcement of the judicial lien against respondents, alleging the following. Some or all of respondents had paid or accepted funds in settlement of the Popov chancery division case without paying to Podvinec the sums subject to the judicial lien.

On November 19, 1991, plaintiff's petition for enforcement of judicial lien was granted, and judgment was entered against respondents. The court issued a memorandum decision and judgment in which it stated the following. The trial court had subject matter jurisdiction to spread the lien of record pursuant to section 2-1402(d)(2) of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-1402(d)(2) (Michie 1993)). Pursuant to section 2-1402(b)(1) of the Code (735 ILCS 5/2-1402(b)(1) (Michie 1993)), a party had a duty to honor the lien that was spread of record.

Respondents argue on appeal that plaintiff failed to follow proper procedures to enforce his judgment. Specifically, respondents argue that: (1) a citation to discover assets could only lien assets within the possession or control of the judgment debtor, and the property of the judgment debtor in the hands of third parties are not within the possession or control of the judgment debtor; and (2) the only methods to reach the judgment debtor's assets in the hands of third parties were to commence either supplementary or garnishment proceedings against the third parties.

Plaintiff argued the following in response, among other arguments. The trial court properly imposed a judicial lien because: (1) the trial court had the inherent authority to enforce its judgment and to fashion remedies for enforcement; (2) the circuit court of Cook County had jurisdiction over the parties and the subject matter in both the law division and the chancery division cases; (3) service of the citation to discover assets on the judgment debtor conferred a general lien in favor of the judgment creditor in the property of the judgment debtor; and (4) the enforcement of a ...


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