Root v. Carter
2021 IL App (4th) 200157
| Ill. App. Ct. | 2021Background
- Root obtained an eviction judgment against Carter; supplementary proceedings issued after she fell behind on payments.
- Carter was ordered to pay $50/month after a February 2019 citation hearing; multiple status hearings followed.
- Carter failed to appear at a November 18, 2019 hearing; the court issued a body attachment commanding her to appear for contempt and set bond at $1500 ("10% rule to apply").
- Carter was arrested; a relative, Sheila Fritts, posted $150 for her release; Carter signed a form authorizing return of bail monies to the person who posted them.
- At a December 2019 hearing (with counsel), Carter sought return of the $150, arguing no order to show cause was served and that Rule 277(f) terminated proceedings; the court denied refund and ordered the $150 turned over to Root; later the payment order was vacated but the turnover order stood.
- On appeal the Fourth District vacated the turnover order, holding the body attachment was invalid and the trial court failed to make the statutory inquiry before applying the third‑party bond; the $150 must be returned to Fritts.
Issues
| Issue | Plaintiff's Argument (Root) | Defendant's Argument (Carter) | Held |
|---|---|---|---|
| Validity of body attachment (service/order to show cause) | Attachment was proper after Carter missed hearing | Attachment invalid because no prior order to show cause as required by 735 ILCS 5/12-107.5(a) | Attachment invalid: court failed to serve order to show cause and set bond above statutory max |
| Bond amount legality | Bond amount not contested | Bond exceeded statutory maximum ($1,000) | Bond set improperly at $1,500 (exceeded statutory limit) |
| Applying third‑party posted bond to judgment without inquiry | Bond funds could be applied to judgment | Statute requires court inquiry and presumption to return funds to respondent or posting party | Court erred: no statutory three‑part inquiry was conducted; funds must be returned unless statutory criteria met |
| Who is entitled to refund of $150 | Bond funds belong to judgment debtor or forfeited to creditor | Bond belonged to third party (Fritts); Carter signed assignment directing return to Fritts | Refund owed to Fritts (assignment supports third‑party ownership); turnover to Root vacated |
Key Cases Cited
- First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128 (1976) (options for an appellate court when appellee fails to file a brief)
- Village of Lake in the Hills v. Niklaus, 11 N.E.3d 26 (Ill. App. Ct. 2014) (discussing appellate practice when appellee does not file a brief)
- People v. Thompson, 966 N.E.2d 1147 (Ill. App. Ct. 2012) (describing body attachments as means to bring alleged contemnors before the court)
- Revolution Portfolio, LLC v. Beale, 341 Ill. App. 3d 1021 (Ill. App. Ct. 2003) (discussion of body attachment purpose)
- Krautsack v. Anderson, 223 Ill. 2d 541 (Ill. 2006) (standard of de novo review for questions of law)
- People v. Kirkpatrick, 240 Ill. App. 3d 401 (Ill. App. Ct. 1992) (authority to refund cash bond to third party who posted bail)