Appeal from the Circuit Court of Kane County. No. 96--AR--964 Honorable Richard J. Larson, Judge, Presiding.
The opinion of the court was delivered by: Justice Hutchinson
Plaintiff, All-Steel Employees Credit Union, appeals from an order granting garnishee, TCF National Bank, relief pursuant to section 2--1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2--1401 (West 2002)) from a final judgment under section 12--706(b) of the Code (735 ILCS 5/12--706(b) (West 2002)). We reverse.
Plaintiff sued Winston Singh on a promissory note. Singh admitted liability, and on October 1, 2000, the trial court entered judgment for $15,019.77, which included prejudgment interest, fees, and costs.
On January 9, 2002, plaintiff served a summons for nonwage garnishment on garnishee, with which Singh had a checking account. The summons included interrogatories to be answered and returned to plaintiff and the trial court on or before February 20, 2002. On February 20, 2002, the case file contained no such answers, and the trial court entered a conditional judgment against garnishee for $16,891.20. On February 25, 2002, plaintiff served garnishee with a summons to confirm the conditional judgment. Garnishee did not answer or appear, and the trial court confirmed the conditional judgment on March 27, 2002.
Plaintiff served garnishee with a citation to discover assets on May 16, 2002. The hearing was set for June 19, 2002. On June 4, 2002, garnishee filed a form answer stating that it had $345 of the property of the "judgment debtor." On June 19, 2002, a rule to show cause issued against garnishee for its failure to appear at the hearing.
On August 9, 2002, garnishee filed a "Motion to Vacate Judgment." It alleged that on February 27, 2002, it had faxed to plaintiff's counsel the answers to the interrogatories for nonwage garnishment. These answers stated that garnishee did not hold any property of Singh's nor was it indebted to him. It further alleged that plaintiff's counsel admitted receiving the answers. It finally alleged that the summons to confirm the conditional judgment was invalid in that it had a return date more than 28 days after the issuance of the summons, and was thus not in compliance with section 12--705 of the Code (735 ILCS 5/12--705 (West 2002)).
Plaintiff responded, denying that counsel had received a copy of the answer before April 1, 2002, or that anyone associated with garnishee ever provided any indication that the answers had been filed or mailed. Counsel averred that he so advised garnishee in a letter of April 17, 2002.
Garnishee replied, alleging that as of January 9, 2002, and all times after, Singh's account with garnishee was overdrawn by $192.20. It further alleged that the supervisor of its legal processing department believed that advising plaintiff's counsel of this was a sufficient defense against the judgment, and the supervisor did not realize that she was mistaken until more than 30 days after the trial court had entered the judgment. Garnishee noted that the citation to discover assets was served more than 30 days after the trial court entered the judgment, and garnishee alleged that it was after the hearing on the citation that the supervisor realized that the defense was not sufficient.
The reply also contained an affidavit in which an employee of garnishee averred that she mailed the answers to the circuit clerk on February 27, 2002 (i.e., after the trial court entered the conditional judgment, and two days after garnishee was served with the summons to confirm the conditional judgment). No such answer can be found in the record.
On November 19, 2002, the trial court vacated the judgment against garnishee. Its order stated:
"[Garnishee] did not exercise due diligence at the trial court level and was negligent in failing to file Answer to the Citation, in failing to respond to the Summons to Confirm Conditional Judgment, and was not diligent in filing its Motion to Vacate. However, court finds that substantial justice requires that the judgment be vacated because the balance at defendant's account at TCF Bank was significantly less that the judgment plus interest against defendant Singh."
Plaintiff now timely appeals, contending that the trial court abused its discretion when it granted relief to garnishee despite finding that it had not acted diligently.
Initially, we dispose of plaintiff's motion to strike garnishee's surreply brief, which we took with this case. We grant the motion. Plaintiff contends that the brief simply restates garnishee's position in its response brief, and this is largely an accurate characterization. Moreover, when we granted garnishee's motion to file the surreply brief, we limited it to five pages. The document filed is five single-spaced pages. Supreme Court Rule 344(b) (155 ...