Page 6 - John Hundley 2009

Illinois law – that Harris had no duty to look beyond the face of the attachment order to
ascertain its validity”, on the premise that Hicks had “waived any argument on that point”,
and on the conclusion that “Hicks’s waiver is the death knell to his appeal”. Arguably, the
Hicks result would not be binding if the issue were properly raised in the trial court.
Second, while the court spoke in terms of garnishees, Hicks involved a proceeding
under the Attachment Statute (735 ILCS 5/4-101 et seq.), which provides only a tempo-
rary, pre-judgment remedy not involving turnover of assets until there has been proper
service on the real defendant and proceedings resulting in a judgment. The inference
that Hicks’ statements apply in what more commonly are called garnishments
(judgment enforcement proceedings under 735 ILCS 5/12-701 et seq. and 735 ILCS 5/12-801 et
seq.) is doubtful, although likely to be commonly drawn.

Nothing in Hicks purports to change “black letter” Illinois law that a valid underlying judgment is
essential to those kinds of garnishments (e.g., 20 ILL. L. & PRAC. Garnishment § 3) and that the voidness
of a judgment can be raised at any time, directly or collaterally, by anyone with whose right or interest the
judgment conflicts (e.g., 23A ILL. L. & PRAC. Judgments §§ 157-58). Hence it is doubtful whether the 7th
Circuit intended to overrule cases stating that garnishees have a right and duty to raise any defect which
makes the underlying judgment void, the exercise of which duty is the means of avoiding double liability.
E.g., O’Toole v. Helio Products, 17 Ill.App.2d 82 (1958).
But the theory of those cases – and the resultant duties placed on garnishees – long
have been decried as unjust and impractical by persons representing banks and other
institutions commonly subjected to post-judgment garnishments. Garnishment summonses
can reach anywhere in the state, so under such cases a garnishee in Cairo can be required to
travel to Galena (495 miles) to make sure the purported judgment is good. Indeed, because
the validity of a judgment can depend on matters not evidenced in the court file – such as
whether the place of alleged service really was the defendant’s residence – even reviewing
that file does not assure that the judgment is valid. Cases such as O’Toole impose impractical
and draconian duties on bystanders to the underlying dispute.

Moreover, because of the federal government’s desire to have child support withholding orders
enforceable nationwide, the theory that an employer should explore the validity of the underlying
proceedings has been disregarded in that context (e.g., 750 ILCS 22/502(b); 750 ILCS 28/35(c)). While
one can debate whether rules for wage withholding should apply to garnishment or attachment of non-
wage assets, the fact is that the two cases on which the Hicks court relied in determining that the
attachment order was “regular on its face” both arose under child support legislation.

Perhaps most persuasive, commerce has changed since the days of O’Toole. Then a release of
funds or property in violation of dubious court papers was the volitional act of a human being, and usually
did not have to occur until at least the end of a business day. With the advent of e-commerce, the
defendant often is in control, his decisions to be implemented immediately. Hence the idea that a
garnishee can determine the validity of the underlying judgment before deciding to comply is outmoded.
On careful analysis, Hicks does not resolve these issues. Hopefully, however, it will spur a debate
leading the legislature to do so.
John\SharpThinking\#18.doc.
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