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Scalise v. Zarate

February 26, 1999

ROSARIO SCALISE, PLAINTIFF-APPELLEE,
v.
CARMEN ZARATE, DEFENDANT INSURANCE BROKERS SERVICE, INC., GLYNN J. ELLIOTT, GARNISHEE-EMPLOYER AND APPELLANT.



The opinion of the court was delivered by: Justice Quinn

Appeal from the Circuit Court of Cook County

No. 96 M1 703251

Honorable Judge Presiding.

Appellant, Insurance Brokers Service, Inc. (IBS), appeals from entry of a judgment in a wage deduction proceeding.

The instant case arose from a landlord-tenant dispute. On June 18, 1996, following a trial, a judgment was entered in favor of plaintiff-appellee, Rosario Scalise, against Carmen Zarate in the amount of $1,440 plus costs. Also on June 18, 1996, the Clerk of the circuit court of Cook County issued a wage deduction summons for October 17, 1996, which was placed with the sheriff for service upon IBS, Zarate's employer. On appeal, IBS argues it was never served with the wage deduction summons.

The sheriff filed a return of service with the trial court clerk indicating that the summons was served upon a "Marcia Lovine" or "Marcia Lorine." However, according to IBS's assertions, no person by either name either worked for or was an officer or registered agent of IBS during 1996. IBS did not appear, and on November 18, 1996, the trial court entered a conditional judgment and directed the issuance of a summons after conditional judgment for December 4, 1996, to IBS.

IBS received a summons after conditional judgment and filed a general appearance on December 4, 1996. At the December 4, 1996, hearing, IBS moved to vacate the conditional judgment. IBS's counsel informed the court that IBS had not withheld any of Zarate's wages during the lien period specified in the wage deduction summons because IBS did not receive the summons. IBS's counsel informed the court that wages were withheld after it received the summons after conditional judgment. IBS also argued a defense that the pending bankruptcy of Zarate was a bar to its garnishment of Zarate's wages.

The trial court vacated the conditional judgment and ordered IBS to return the wages it withheld after it was served with the summons after conditional judgment, as these wages were outside the lien period specified in the original summons. In the court's written order, dated December 4, 1996, the court also ruled that Zarate's pending bankruptcy was not a bar to IBS's duty "to report on its failure to comply" with the garnishment order.

The court questioned whether a special and limited appearance was necessary to contest the prior service and attack the ex parte judgment. The court requested that IBS submit authority on the question of whether IBS's general appearance waived IBS's right to contest the service of the prior wage deduction summons and the validity of the conditional judgment. IBS filed a brief on this issue. Following an order requesting further briefing, both IBS and Scalise filed briefs on this issue.

The trial court heard oral argument on March 12, 1997. By a written order dated April 21, 1997, the trial court held "that the appearance itself without answer subjected garnishee defendant to wage deduction and again it is ordered to answer for lien period on or before May 1, 1997 at 11 AM."

IBS appeared on May 1, 1997, as ordered, but did not answer the original wage deduction summons. Counsel for IBS stated that IBS did not file an answer because it did not want to waive any objection to the prior jurisdiction of the trial court. The trial court ordered IBS to file an answer and stated that it would enter a contempt order with sanctions against it if it refused to do so. The court then adjourned the hearing until 2 p.m. that same day. That afternoon, IBS filed an answer arguing that it had not withheld any wages because it had not been served with the wage deduction summons. The trial court ruled that the filing of a general appearance cured any defects in service of process, and entered judgment against IBS in the amount of $1,028.10.

On appeal, appellant argues that the service on the original summons was not effective because the person upon whom process was served was not appellant's employee or agent.

Appellant further argues that even if the court had personal jurisdiction as of December 4, 1996, when appellant filed its general appearance, the general appearance did not confer "retroactive jurisdiction" so as to validate the original summons, and that appellant could not file a special and limited appearance objecting to personal jurisdiction because the second summons was valid. Appellee argues that appellant waived this argument by filing its general appearance and answer.

The Code of Civil Procedure (Code) sets out the means by which a judgment debtor's wages may be garnished. See 735 ILCS 5/12-801 et seq. (West 1994). First, a judgment creditor files an affidavit stating that he believes the garnishee is indebted to the judgment debtor for wages due or to become due, and by filing written interrogatories to be answered by the employer-garnishee with respect to the indebtedness. 735 ILCS ...


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