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Scalise v. Zarate, No. 1-97-2145 1st Dist. 2/16/99 |
SIXTH DIVISION
February 26, 1998
No. 1-97-2145
Plaintiff-Appellee, v. CARMEN ZARATE, Defendant (Insurance Brokers Service, Inc., Garnishee-Employer and
Appellant). Court of Cook County No. 96 M1 703251 Honorable Glynn J. Elliott, Judge
Presiding. JUSTICE QUINN delivered the opinion of the
court: 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 5/12-805(a)
(West 1994). The circuit clerk then issues a summons to the employer. 735 ILCS
5/12-805(a) (West 1994). If the employer is properly served, the employer
must file a written answer under oath to the written interrogatories, setting
forth the amount due as wages to the judgment debtor for the payroll periods
ending immediately prior to 84 days after the service of summons. 735 ILCS
5/12-808(c) (West 1994). Section 12-807 of the Code provides: Ordinarily, the filing of an appearance which is not
designated as special and limited constitutes a general appearance and waives a
party's objection to personal jurisdiction. See 735 ILCS 5/2-301(a) (West 1994).
Here, appellant filed a general appearance. For the following reasons, we hold that although
appellant did not file a special appearance, appellant did not waive its
jurisdictional argument by filing a general appearance after being served with
the summons to confirm the conditional judgment. In the instant case, the general rules of civil
procedure would seem to dictate that appellant's filing of a general appearance
waived any jurisdictional argument. However, the Code provisions governing the
garnishment of a judgment-debtor's wages require that a garnishee-employer,
after being served with a summons to confirm the conditional judgment, appear in
court and answer, without providing for filing a special and limited appearance.
735 ILCS 5/12-807(a) (West 1994). Further, "[i]f the employer appears and
answers, the same proceedings may be had as in other cases." 735 ILCS
5/12-807(a) (West 1994). The primary rule of statutory construction is to
ascertain and give effect to the legislature's intent, which is determined from
the plain language of the statute itself. Presley v. P&S Grain Co.,
289 Ill. App. 3d 453, 462 (1997); Lanxon v. Magnus, 296 Ill. App. 3d
377, 379 (1998). When the plain language of more than one statute is relevant to
a given action, courts must determine which statute is more specifically
applicable to the case at hand. Lanxon, 296 Ill. App. 3d at 379. Where
one of the statutory provisions is general, designed to apply to cases
generally, and the other is particular, relating to only one subject, the
particular provision must prevail. Lanxon, 296 Ill. App. 3d at 379.
Additionally, courts should construe a statute so as to avoid an absurd result
or a hardship. Presley, 289 Ill. App. 3d at 462. Appellee argues that appellant waived its
jurisdiction argument when it entered its general appearance and filed its
answer to the complaint. Here, the more particular provisions of the Code on
garnishment of a judgment-debtor's wages should prevail over the general rule
that the filing of a general appearance waives jurisdictional arguments.
It was apparent at all times throughout the
proceedings below that appellant was objecting to the entry of the conditional
judgment on personal jurisdiction grounds because appellant had not been
properly served with the initial wage deduction summons. Appellant initially did
not file an answer in the circuit court precisely because it did not want to
waive any jurisdictional argument. Appellant appeared after it was served with
the summons after conditional judgment, but did not answer the original wage
deduction summons. As counsel for appellant explained, appellant did not file an
answer because it did not want to waive any objection to the jurisdiction of the
trial court pursuant to the first summons based on a defect in the service of
process. The trial court then ordered appellant to file an answer and stated
that it would enter a contempt order with sanctions against it if it refused to
do so. Appellant filed an answer, but argued in its answer that it had not
withheld any wages because it had not been served with the wage deduction
summons. When a party files an answer under the threat of being held in contempt
for failing to do so, such filing does not necessarily waive the party's
argument as to lack of jurisdiction. Presley, 289 Ill. App. 3d at 459.
We hold that appellant did not waive its argument by complying with the court's
order. At the time that appellant entered its appearance,
it also filed a motion to vacate the conditional judgment on the grounds that it
never received the original service of summons. Applying the plain language of
Section 12-807(a), we hold that appellant properly preserved its jurisdictional
argument by objecting on the basis that it was not properly served with the wage
deduction summons. In Grace v. Casey-Grimshaw Marble Co., 62
Ill. App. 149 (1895), this court reversed a judgment against a garnishee who had
not been served with a summons. The garnishee subsequently appeared and moved to
have the judgment set aside. The trial court denied this motion. This court
reversed, holding that "[t]he void judgment against Grace was not validated by
his motion to set the same aside." Grace, 62 Ill. App. at 151.
Similarly, in Coleman Financial Corp. v.
Schuddekopf, 89 Ill. App. 2d 150 (1967), a conditional judgment was entered
against a garnishee. A summons was issued on the conditional judgment. The
garnishee appeared specially and moved to quash the return of service on the
summons. At the hearing on the motion to quash the service of process, the
garnishee's counsel did not confine his argument to matters of jurisdiction;
therefore, this court held that the appearance constituted a general appearance
by the garnishee. Coleman, 89 Ill. App. 2d at 152. However, this court
also held that under "An Act in regard to Garnishment ***" (the Garnishment Act)
(Ill. Rev. Stat. 1965, ch. 62, par. 37(a) (now 735 ILCS 5/12-706(a) (West
1994))), "when the the garnishee appears and answers before final judgment[,] he
is entitled to a hearing as in other cases and is not barred by his prior
default." Coleman, 89 Ill. App. 2d at 153. The court pointed out that
"the single purpose served by the conditional judgment is the protection of a
garnishee from the consequences of one oversight." Coleman, 89 Ill.
App. 2d at 153. In the instant case, there was no oversight on the
part of the garnishee. Rather, the garnishee-employer did not receive the wage
deduction summons, but appeared after valid service of the summons after
conditional judgment. Thus, appellant was entitled to a hearing, and the trial
court's refusal to grant appellant a hearing on the issue of jurisdiction was
error. This is an additional reason for holding that appellant did not waive its
jurisdictional argument by appearing and contesting the prior service of the
wage deduction summons. Thus, we proceed to address appellant's argument
that the court did not have jurisdiction over it upon the first service of
process. Service on private corporations is governed by section 2-204 of the
Code, which provides that a corporation may be served by leaving a copy of the
process with the corporation's registered agent or any officer or agent of the
corporation found anywhere in the state, or in any other manner permitted by
law. 735 ILCS 5/2-204 (West 1994). The Code provisions for wage garnishment of
the employer of a judgment debtor do not specify another means of service of
process. Section 12-805 provides only that "[t]he summons shall be in a form
consistent with local court rules." 735 ILCS 5/12-805 (West 1994). In the instant case, appellant argues it was never
served with the original 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 appellant's
assertions, no person by either name either worked for or was an officer or
registered agent of appellant during 1996. Thus, the first service of process
may indeed have been defective, and the trial court may not have had
jurisdiction over appellant at the time the court entered the conditional
judgment. Subsequently, a summons after conditional judgment
was properly served on appellant, and appellant filed an appearance as required
under the Code's provisions for garnishment of a judgment debtor's wages. See
735 ILCS 5/12-801 et seq. (West 1994). The parties agree that the
circuit court obtained jurisdiction over appellant upon the second, properly
executed, service of summons. However, the trial court entered the conditional
judgment prior to the second service of process, at a point when the court may
not have had jurisdiction. Thus, we remand the case to the circuit court for a
hearing as to whether the service of the first wage deduction summons was
defective, so that the court may properly exercise its jurisdiction and
determine whether to enter an order that appellant garnish the judgment-debtor's
wages. Therefore, we reverse the order of the circuit court
and remand with the above directions. Reversed. BUCKLEY and ZWICK, JJ.,
concur.
ROSARIO SCALISE,
Appeal from the
Circuit
"§12-807. Failure of employer to appear. (a) If an employer fails
to appear and answer as required by Part 8 of Article XII of this Act, the
court may enter a conditional judgment against the employer for the amount due
upon the judgment against the judgment debtor. A summons to confirm the
conditional judgment may issue against the employer returnable not less than
21 nor more than 30 days after the date of issuance, commanding the employer
to show cause why the judgment should not be made final. If the employer,
after being served with summons to confirm the conditional judgment ***, fails
to appear and answer, the court shall confirm such judgment to the amount of
the judgment against the judgment debtor and award costs." 735 ILCS 5/12-807
(West 1994).