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Community 1st Credit Union v. Boswell

February 04, 1999

COMMUNITY 1ST CREDIT UNION PLAINTIFF-APPELLEE AND CROSS APPELLANT,
v.
JOHN C. BOSWELL, DEFENDANT, AND AMPAD CORPORATION, A DIVISION OF AMERICAN PAD AND PAPER CORPORATION, DEFENDANT-APPELLANT AND CROSS-APPELLEE.



The opinion of the court was delivered by: Justice Cook

IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

Appeal from Circuit Court of Coles County No. 96LM134

Honorable Dale A. Cini, Judge Presiding.

Ampad Corporation, a division of American Pad and Paper Company (Ampad), a garnishee against whom conditional judgment was entered and affirmed, appeals the denial of its section 2-1401 (735 ILCS 5/2-1401 (West 1996)) petition. We vacate the default judgment against Ampad and remand for further proceedings.

In March 1996, plaintiff Community 1st Credit Union (Community) sued John Boswell to recover on an overdue promissory note, interest, and attorney fees. Community was awarded a judgment in the amount of $9,563.03 plus attorney fees in the amount of $127.50. Boswell did not pay the judgment and Community sought to garnish his wages from his employer Ampad. In August 1996, Community filed a notice of wage deduction and served "Ampad Corporation" with summons in Mattoon, Illinois, which summons indicated that Ampad was to answer Community's interrogatories and have the answers filed with the Coles County circuit clerk's office on or before December 9, 1996.

It is uncertain whether Ampad filed the answers to the interrogatories with the clerk's office. The docket entry indicates Ampad filed the answers on November 19, 1996. However, the documents turned up missing. Ampad claims it filed the answers and the clerk's office lost them. Community claims the answers were never filed and the docket entry was the result of a clerical mistake. Ampad contends the answers to the interrogatories were relevant because they established that Boswell already had his wages garnished for child support that took him to the federal limit of 25% of his disposable earnings. Therefore, Ampad argues no wages were left for Community to garnish.

On January 27, 1997, with no answers on file, Community filed a motion for conditional judgment, alleging Ampad failed to answer the interrogatories and requesting the court to enter conditional judgment against Ampad in the amount of $10,075.94. The hearing on the motion was set for February 28, 1997.

Ampad became aware the interrogatory answers were missing sometime in mid-February. Dale Dixon, a payroll manager for Ampad in Dallas, Texas, claims she called the Coles County circuit clerk's office and spoke with an unnamed employee who informed her the answers to the interrogatories had been received but had been lost. Despite knowing the answers could not be found, Ampad did not refile the answers, respond to Community's motion for conditional judgment, or appear at the February 28 hearing. The trial court ordered conditional judgment against Ampad and set a hearing to confirm the conditional judgment for April 4.

On March 3, 1997, the court received correspondence in the mail from Dixon. The letter, dated February 27, 1997, attempted to summarize the answers to Community's interrogatories and stated that John Boswell already had two orders of withholding against his weekly wages that took him to the federal limit for such deductions and no wages were left to be garnished. The letter was not signed under oath and did not provide all the information that was requested in the interrogatories. Ampad contends it sent a letter, instead of answers to the interrogatories, because Ampad's office copy of the interrogatories had been lost due to a recent office move. Ampad's letter was filed with the court, but there is no indication that a copy was sent to Community.

On April 4, 1997, Ampad failed to appear at the hearing to confirm conditional judgment. The trial court found Ampad in default and confirmed the conditional judgment in Community's favor. The trial court made no reference to Ampad's February 27 letter.

In May 1997, Ampad wrote a letter to Vicki Kirkpatrick at the circuit clerk's office and requested a search for the missing interrogatories. After an extensive search, Kirkpatrick wrote back that the answers could not be found and that "perhaps the docket entry made November 19, 1996[,] in [No.] 96-LM-134 stating 'Interrogatories filed./tid.' was made in error." Kirkpatrick also stated that the employee who made the docket entry no longer worked for the clerk's office.

In May 1997, Ampad filed a special and limited appearance, arguing that its proper name was "Ampad Corporation, a Division of American Pad and Paper Company," not "Ampad Corporation." Therefore, Ampad argued, the judgment rendered against "Ampad Corporation" was void and should be vacated. Community responded with a motion to correct misnomer or in the alternative to deny the relief requested. The trial court granted Community's motion to correct misnomer and rejected Ampad's argument that it lacked jurisdiction.

In November 1997, Ampad filed a section 2-1401 motion (735 ILCS 5/2-1401 (West 1996)) to vacate the April 1997 order confirming condi-tional judgment against Ampad. Ampad contended no funds were available for Community to garnish. Ampad argued it provided this information in the answers to Community's interrogatories but the clerk's office lost the answers. Also, the March 3, 1997, letter Ampad filed with the court indicated no funds were available for Community to garnish.

Community responded with an affidavit from Nancy Webb, an assistant to Community's counsel. Webb claimed she was personally familiar with Community's efforts to obtain answers to the interrogatories. Her affidavit chronicled conversations she had with Ampad and the clerk's office. She claimed she spoke with Brian at the clerk's office over the telephone in mid-February 1997. He told her the answers were on file and he would mail a copy of the answers to Webb. Webb received the answers, but they were not for this case. Webb spoke with ...


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