noting that “wage deduction is ‘an action in garnishment, a statutory proceeding unknown to the common law’ ”
How later courts described this case
- noting that “wage deduction is ‘an action in garnishment, a statutory proceeding unknown to the common law’ ”
- choses in action are not subject to execution at common law
Written by the judges who cited it.
The opinion
MR. JUSTICE SCHAEFER, dissenting:
The immunity of local governmental units which was involved in Henderson v. Foster was, as the court there pointed out, “of judicial origin and can therefore be abolished by this court.” (59 Ill.2d at 350.) But the sovereign immunity of the State is not of judicial origin, and its retention or abolition has been specifically committed by the Constitution to the General Assembly.
Section 4 of article XIII of the Illinois Constitution of 1970 says: “Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.” Pursuant to this constitutional provision the General Assembly enacted a law, which provides: “Except as provided in ‘An Act to create the Court of Claims, to prescribe its powers and duties, and to repeal An Act herein named’, filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any court.” Ill. Rev. Stat. 1973, ch. 127, par. 801; see Williams v. Medical Center Com. (1975), 60 Ill.2d 389 .
This wage deduction action does not fall within the exception provided in the Court of Claims Act. The majority would escape the provisions of the Constitution and the statute enacted under it on the ground that the State is not “a defendant or party” to an action brought under the Wage Deduction Act. In such an action the State is brought before the court by the service of summons (section 5); if it fails to answer, a default judgment is to be entered against it (section 6); it is entitled to off-set its own demands against the employee, and it is made subject to potential adverse claims by third parties against the funds due to the employee (sections 8 and 9); the Civil Practice Act governs the trial (section 10), and a wage deduction order entered in such an action is to “have the force and effect and be enforceable as a judgment” (section 2). (Ill. Rev. Stat. 1973, ch. 62, pars. 72, 75, 76, 78, 79 and 80.) These characteristics make it impossible for me to say that the State is not a party to a wage deduction action.
UNDERWOOD, C.J., joins in this dissent.