{ "id": 3561108, "name": "PETER FISCHER IMPORT MOTORS, INC., Plaintiff-Appellant, v. VINCENT BUCKLEY, Defendant (LaGrange Federal Savings and Loan Association, Garnishee-Appellee)", "name_abbreviation": "Peter Fischer Import Motors, Inc. v. Buckley", "decision_date": "1984-02-02", "docket_number": "No. 82\u20142891", "first_page": "906", "last_page": "911", "citations": [ { "type": "official", "cite": "121 Ill. App. 3d 906" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "21 Ill, App. 277", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2418865 ], "opinion_index": 0, "case_paths": [ "/ill-app/21/0277-01" ] }, { "cite": "7 Ill. App. 422", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4836912 ], "opinion_index": 0, "case_paths": [ "/ill-app/7/0422-01" ] }, { "cite": "166 N.E.2d 311", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1880, "opinion_index": 0 }, { "cite": "25 Ill. App. 2d 440", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5786344 ], "year": 1880, "opinion_index": 0, "case_paths": [ "/ill-app-2d/25/0440-01" ] }, { "cite": "48 N.E.2d 595", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "319 Ill. App. 102", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5649798 ], "opinion_index": 0, "case_paths": [ "/ill-app/319/0102-01" ] }, { "cite": "7 N.E. 496", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1943, "opinion_index": 0 }, { "cite": "117 Ill. 396", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2895143 ], "year": 1943, "opinion_index": 0, "case_paths": [ "/ill/117/0396-01" ] }, { "cite": "148 N.E.2d 793", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1886, "opinion_index": 0 }, { "cite": "13 Ill. 2d 197", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2773810 ], "year": 1886, "opinion_index": 0, "case_paths": [ "/ill-2d/13/0197-01" ] }, { "cite": "1 Ill. (Breese) 411", "category": "reporters:state", "reporter": "Breese", "case_ids": [ 435590 ], "opinion_index": 0, "case_paths": [ "/ill/1/0411-01" ] }, { "cite": "435 N.E.2d 958", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. App. 3d 230", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3031701 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/0230-01" ] }, { "cite": "372 N.E.2d 934", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "57 Ill. App. 3d 162", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3420315 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/57/0162-01" ] }, { "cite": "348 N.E.2d 527", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "38 Ill. App. 3d 652", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2806562 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/38/0652-01" ] }, { "cite": "427 N.E.2d 181", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "100 Ill. App. 3d 544", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5501054 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/0544-01" ] }, { "cite": "311 N.E.2d 250", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "19 Ill. App. 3d 27", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2699480 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/19/0027-01" ] }, { "cite": "272 N.E.2d 818", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "133 Ill. App. 2d 73", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2472021 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-2d/133/0073-01" ] }, { "cite": "6 Ill. App. 111", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4749008 ], "opinion_index": 0, "case_paths": [ "/ill-app/6/0111-01" ] }, { "cite": "171 N.E.2d 225", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1880, "opinion_index": 0 }, { "cite": "28 Ill. App. 2d 234", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5217467 ], "year": 1880, "opinion_index": 0, "case_paths": [ "/ill-app-2d/28/0234-01" ] }, { "cite": "28 Ill. 112", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5203400, 5204359 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/ill/28/0112-02", "/ill/28/0112-01" ] } ], "analysis": { "cardinality": 578, "char_count": 10833, "ocr_confidence": 0.755, "pagerank": { "raw": 3.5910473017514935e-07, "percentile": 0.8872333869658038 }, "sha256": "b08b56e9c32edb920a80f60e44a0f12c2e3dca5e0f5975fe3c73709a7ef95dbf", "simhash": "1:8aa80d7c79ce3722", "word_count": 1797 }, "last_updated": "2023-07-14T21:31:09.364868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PETER FISCHER IMPORT MOTORS, INC., Plaintiff-Appellant, v. VINCENT BUCKLEY, Defendant (LaGrange Federal Savings and Loan Association, Garnishee-Appellee)." ], "opinions": [ { "text": "JUSTICE ROMITI\ndelivered the opinion of the court:\nIn this appeal, plaintiff-appellant Peter Fischer Import Motors, Inc. (Fischer), requests that this court reverse the order of the trial court dismissing its order for attachment of a negotiable order of withdrawal (NOW) account at LaGrange Federal Savings and Loan Association (LaGrange), the garnishee in the attachment action and appellee in this appeal. The trial court ordered such dismissal on the grounds that sections 1 \u2014 3(b) and 4 \u2014 8(d) of the Illinois Savings and Loan Act (Ill. Rev. Stat. 1981, ch. 17, pars. 3003(b), 3099(d)) exempted the NOW account from attachment.\nAt the time of Fischer\u2019s appeal of the trial court\u2019s order, no judgment had been rendered on the merits of Fischer\u2019s complaint against the holder of the NOW account, Vincent Buckley, for debts allegedly owed by him to Fischer. We therefore dismiss\u201d Fischer\u2019s appeal for lack of appellate jurisdiction because the trial court\u2019s dismissal of the attachment order was not a final and appealable order.\nFischer\u2019s contract complaint filed July 22, 1982, against Vincent Buckley alleged in pertinent part that Buckley had failed to pay Fischer for repairs to his automobile performed by Fischer to Buckley\u2019s satisfaction in the amount of $2,953.42. The complaint further stated that Buckley had deceptively attempted to make payment for such repairs through a personal check drawn on his NOW account at La-Grange, but that Fischer had been unable to cash the check the same day Buckley had delivered it to him because a stop payment order had been placed thereon by the time Fischer presented it to LaGrange. The complaint requested that Buckley pay Fischer the $2,953.42 owed it plus interest.\nInitial attempts to serve the complaint upon Buckley on July 27 and 31, 1982, were unsuccessful, since the address Buckley had given to Fischer was discovered to be an empty lot and efforts to find other addresses at which Buckley could be located were not fruitful. An alias summons was successfully served on Buckley\u2019s father on November 4, 1982.\nThe record reflects that in the interim between these dates Fischer motioned the trial court on August 25 for a hearing on its \u201ccomplaint for attachment.\u201d The trial court issued its order of attachment on defendant\u2019s NOW account at LaGrange on October 1, 1982. That same day, LaGrange filed its motion to dismiss the attachment order on the grounds that it was exempt from garnishment proceedings pursuant to section 4 \u2014 8(d) of the Illinois Savings and Loan Act (Ill. Rev. Stat. 1981, ch. 17, par.- 3099(d)). The trial court granted this motion and dismissed the order of attachment in a written order dated October 27,1982. This appeal by Fischer followed.\nSubsequently, Buckley\u2019s attorney in the underlying action filed an appearance on his behalf on November 30, 1982. On January 6, 1983, the trial court granted Buckley leave to file an answer and counterclaim, and entered and continued Fischer\u2019s motion of that date for a default judgment because of Buckley\u2019s failure to answer.\nThere is nothing further in the record regarding either Fischer\u2019s attachment request nor its principal money claim against Buckley. We note specifically that the record fails to contain Fischer\u2019s affidavit for an attachment, which is required under Illinois law (Ill. Rev. Stat. 1981, ch. 110, pars. 4 \u2014 104, 4 \u2014 105) and which confers upon the trial court the jurisdiction to issue any order. (Pullian v. Nelson (1862), 28 Ill. 112; Ford v. Transocean Airlines, Inc. (1960), 28 Ill. App. 2d 234, 171 N.E.2d 225; Winkler v. Barthel (1880), 6 Ill. App. 111.) We also note that there is no transcript of hearings on the attachment order, if any were held. In addition, we note that although it was Fischer\u2019s burden to prove that LaGrange as garnishee was in possession of defendant\u2019s property (Vinson v. Roscoe (1971), 133 Ill. App. 2d 73, 272 N.E.2d 818), it was the garnishee\u2019s burden to prove any affirmative defense thereto. Liberty Leasing Co. v. Crown Ice Machine Leasing Co. (1974), 19 Ill. App. 3d 27, 311 N.E.2d 250.\nBoth Fischer and LaGrange frame the issue of the present appeal as whether Illinois statutes exempt NOW accounts at a Federal savings and loan association from attachment. The central question which the parties seek to raise is whether a NOW account at a Federal savings and loan association should be considered a checking account or a savings account for purposes of attachment under Illinois law. The issue is apparently a novel one which has not been addressed in this or other jurisdictions.\nNeither party, however, has addressed the threshold question of this court\u2019s jurisdiction to entertain the present appeal. We note that it is our duty to consider this issue even where it is not raised by the parties (E. M. Melahn Construction Co. v. Village of Carpenters-ville (1981), 100 Ill. App. 3d 544, 427 N.E.2d 181), and that if there is no final and appealable order it is the duty of this court to dismiss the action sua sponte. Bell v. Home Federal Savings & Loan Association (1976), 38 Ill. App. 3d 652, 348 N.E.2d 527.\nGenerally, an appeal may be taken only from an order that is final. (87 Ill. 2d R. 301.) To be considered final, a trial court\u2019s order must either terminate the litigation between all of the parties on its merits or dispose of the rights of the parties\u2019 entire controversy. (Cohen v. Sterling Nursing Home, Inc. (1978), 57 Ill. App. 3d 162, 372 N.E.2d 934.) An order which leaves the plaintiff\u2019s main claim still pending and undecided is not final. Trizzino v. Kline Brothers Co. (1982), 106 Ill. App. 3d 230, 435 N.E.2d 958.\nWhere there are multiple parties or multiple claims, Supreme Court rules permit the appeal of a final order as to one or more but fewer than all the parties or claims where the trial court\u2019s order expressly finds that there is no just reason for delaying enforcement or appeal. (87 Ill. 2d R. 304(a).) If the trial court\u2019s order does not include this express finding, the order is subject to revision at any time before the entry of an order which adjudicates all the claims, rights, and liabilities of the parties. 87 Ill. 2d R. 304(a).\nA trial court\u2019s order of an attachment, as well as an order quashing or denying such an order, has no effect on the proceedings regarding the plaintiff\u2019s principal money claim against the defendant. (Bates v. Jenkins (1831), 1 Ill. (Breese) 411.) Thus, it does not terminate the litigation between the parties on its merits. Consequently, such an order is final and appealable only after the entry of a judgment on the merits of the plaintiff\u2019s principal claim against the defendant or if the attachment order expressly finds that there is no just reason for delaying enforcement or appeal. Smith v. Hodge (1958), 13 Ill. 2d 197, 148 N.E.2d 793. See also Hemphill v. Collins (1886), 117 Ill. 396, 7 N.E. 496; Siegel v. Meyer (1943), 319 Ill. App. 102, 48 N.E.2d 595.\nThis result obtains because attachment is a legal process which seizes and holds the property of the defendant debtor until the rights of the parties are determined in the creditor\u2019s principal suit, often in tort or contract, in which the writ is issued. (Marchant v. Artists Embassy, Inc. (1960), 25 Ill. App. 2d 440, 166 N.E.2d 311; Culver v. Rumsey (1880), 7 Ill. App. 422.) When a writ of attachment issues it lays hold of and appropriates the debtor\u2019s property, keeping it in custody of the law until it is needed to satisfy the creditor\u2019s demand. (Kennedy v. Wikoff (1886), 21 Ill, App. 277.) Attachment, whether directly against a defendant debtor or his property in the possession of a third party, is a measure instituted before judgment on the merits of the principal claim of the plaintiff creditor.\nThe same holds true for a \u201cgarnishment\u201d action in which the plaintiff attempts to hold the defendant\u2019s property in the possession of a third party pending the disposition of the plaintiff\u2019s principal claim against the defendant. Such a proceeding is actually a prejudgment proceeding in attachment, where the defendant\u2019s property which is attached is in the possession of a third party. The designation .of this procedure as one of \u201cgarnishment\u201d has likely occurred because the third party, in such instances, is commonly referred to as the \u201cgarnishee.\u201d See Ill. Rev. Stat. 1981, ch. 110, par. 4 \u2014 126.\nThis should be distinguished from the usual garnishment action, which is a post-judgment procedure instituted directly against a third party in whose hands the judgment debtor\u2019s property may be found and the creditor\u2019s claim against his debtor has already been resolved, and judgment thereon rendered. (See Ill. Rev. Stat. 1981, ch. 110, par. 12 \u2014 701 et seq.) Appeals in these proceedings are governed by Supreme Court Rule 304(b)(4), which permits an appeal from an order in a supplementary proceeding such as garnishment without the need for an express finding by the trial court that there is no just reason for delaying enforcement or appeal. 87 Ill. 2d R. 304(b)(4).\nBecause the instant case is one where there has not yet been a resolution of Fischer\u2019s principal money claim against Buckley, the action is clearly one of attachment. In addition, even though Buckley\u2019s property, which the plaintiff has attempted to seize, is allegedly in the possession of LaGrange, a third-party garnishee, the action is one of garnishment only in a certain sense of that term. It is essentially a proceeding in attachment.\nIn summary, the trial court\u2019s order dismissing Fischer\u2019s attachment of Buckley\u2019s property at LaGrange Federal Savings and Loan Association did not terminate the litigation because it left pending and undecided Fischer\u2019s principal money claim. In addition, since the order did not expressly find that there was no just reason for delaying enforcement or appeal, the order does not fall within the exception which permits the appeal of a final order which disposes of fewer than all of the parties or claims involved in the litigation. We therefore conclude that this court is without jurisdiction to review the trial court\u2019s order dismissing Fischer\u2019s attachment of Buckley\u2019s NOW account at LaGrange Federal Savings and Loan Association.\nFor the reasons stated above, the plaintiff\u2019s appeal of the trial court\u2019s order dismissing its writ of attachment is dismissed.\nAppeal dismissed.\nLINN, P.J., and JIGANTI, J., concur.", "type": "majority", "author": "JUSTICE ROMITI" } ], "attorneys": [ "Kenneth E. North, of Solomon, Rosenfeld, Elliott & Stiefel, Ltd., of Chicago, for appellant.", "Robert W. Earhart, Jr., and Thomas B. Cassidy, both of Martin, Craig, Chester & Sonnenschein, of Chicago, for appellee." ], "corrections": "", "head_matter": "PETER FISCHER IMPORT MOTORS, INC., Plaintiff-Appellant, v. VINCENT BUCKLEY, Defendant (LaGrange Federal Savings and Loan Association, Garnishee-Appellee).\nFirst District (4th Division)\nNo. 82\u20142891\nOpinion filed February 2, 1984.\nKenneth E. North, of Solomon, Rosenfeld, Elliott & Stiefel, Ltd., of Chicago, for appellant.\nRobert W. Earhart, Jr., and Thomas B. Cassidy, both of Martin, Craig, Chester & Sonnenschein, of Chicago, for appellee." }, "file_name": "0906-01", "first_page_order": 928, "last_page_order": 933 }