dissenting:
I respectfully dissent for three reasons. I agree with the clerk that plaintiff is barred in this litigation from arguing that the clerk had a fiduciary duty to place interpleaded funds, to which plaintiff became entitled in a distinct and separate action, in an interest bearing account. Even if plaintiff were not precluded from raising this question in this proceeding, her complaint was nevertheless properly dismissed because she has offered no legal basis to support her contention that the clerk has a “fiduciary duty” as a “public official” to place litigants’ custodial funds in interest bearing accounts absent court order to that effect. In addition, I find no support for the majority’s assumption that a trial court or intermediate appellate court should provide general supervision over the clerk’s administration of custodial funds in all litigation.
Because plaintiff could and should have claimed in the earlier interpleader action that the interpleaded funds be placed in an interest bearing account, plaintiff cannot now argue that the clerk erred when he failed to do so absent direction from the trial court. In the inter-pleader action to which plaintiff was a party, the trial court’s order directing the clerk’s custody of the litigants’ funds did not state whether the funds should be placed in an interest bearing account. If plaintiff believed that those funds should have been placed in an interest bearing account, her remedy was to challenge this deficiency in the trial court’s escrow order in the interpleader action itself. Plaintiff cannot now claim in a separate action for injunctive and monetary relief that the clerk’s handling of the funds was in error because the clerk did not place the funds in interest bearing accounts, even though the trial court’s order never directed him to do so.
The recent decision of Walker v. Cockrell (1982), 110 Ill. App. 3d 562, 442 N.E.2d 660, appeal denied (1983), 93 Ill. 2d 548, illustrates that plaintiff’s claim is not properly presented in this case. In Walker, plaintiffs challenged the validity of the clerk’s retention of a certain portion of their bail bonds for costs relating to the clerk’s holding of the funds pending final disposition of the plaintiffs’ criminal cases, in accordance with Illinois statute. Plaintiffs were released and their bonds refunded to them, minus the statutory costs, by the clerk. Thereafter plaintiffs filed an action for a declaratory judgment that the clerk’s retention of the statutory amount was invalid, and a refund should be made of those sums from the clerk.
The appellate court determined that the plaintiffs’ suit “constitute[d] an attempt to avoid the rule against collateral attack of a judgment.” (110 Ill. App. 3d 562, 564, 442 N.E.2d 660, 662.) The court reasoned that the “plaintiffs were required to raise the issues sought to be presented [in the declaratory judgment action] before those courts in which the judgments [pertaining to bail bond and refund thereof were entered. [Citations.] If plaintiffs had done so those portions of the judgments directing disposition of [plaintiff’s] bail deposit could have been considered by a reviewing court on direct appeal. [Citation.]” 110 Ill. App. 3d 562, 564, 442 N.E.2d 660, 662.
The plaintiff here, similar to those in Walker, is attempting an impermissible collateral attack on a judgment. Plaintiff does not dispute that a trial court entertaining an interpleader action may direct that the funds be placed in an interest bearing account in the clerk’s custody pending final disposition, and that the clerk’s administration of those interpleader funds could be challenged in an appeal from the trial court’s final interpleader order. (See, e.g., Modern Woodmen of America v. Conner (1906), 129 Ill. App. 651; see also, e.g., Jones v. Hodges (1954), 2 Ill. App. 2d 509, 517-18, 119 N.E.2d 806.) Her tardy effort in this proceeding to shift responsibility to the clerk for a possible inadequacy in the trial court’s interpleader escrow order, which she could and should have challenged in that separate action, is barred by the rule against collateral attack on a judgment and should be given no credence here. (See Malone v. Cosentino (1983), 99 Ill. 2d 29, 457 N.E.2d 395; Walker v. Cockrell (1982), 110 Ill. App. 3d 562, 442 N.E.2d 660; Morgan v. Finley (1982), 105 Ill. App. 3d 80, 433 N.E.2d 1047; Sanner v. Champaign County (1980), 88 Ill. App. 3d 491, 410 N.E.2d 656.) As a result, the trial court’s dismissal of the complaint was proper.
Moreover, plaintiff’s complaint was also properly dismissed because plaintiff failed to provide sufficient legal basis to support her contention that the clerk has a fiduciary duty to place all litigants’ custodial funds in interest bearing accounts absent direction in a trial court’s order. Plaintiff does not support her allegation that the clerk has such a duty with authority from Illinois statutes or supreme court rules. (See Ill. Rev. Stat. 1985, ch. 25, pars. 1 et seq. (statutory duties and responsibilities of the clerks of the circuit courts); see generally, e.g., Ill. Rev. Stat. 1985, ch. 102, par. 34 et seq. (public deposits act); City of Springfield v. Allphin (1980), 82 Ill. 2d 571, 413 N.E.2d 394; In re Estate of Skoufes (1985), 138 Ill. App. 3d 954, 487 N.E.2d 49.) Instead, plaintiff argues, and the majority agrees, that the clerk has such a fiduciary duty because he is a public official; therefore, plaintiff’s argument continues, pursuant to this fiduciary duty, the clerk should be required by prudence and common sense to invest litigants’ funds in interest bearing accounts. In my opinion the majority’s conclusion has no foundation in legal precedent. Neither equity, fairness, nor general principles of a trustee’s fiduciary responsibilities provide legal basis for the majority’s sweeping conclusion that because the clerk is a public official, he has a fiduciary duty to place litigants’ custodial funds in interest bearing accounts absent direction of court order.
The majority’s broad conclusion that the clerk has a fiduciary duty as a matter of law to place all litigants’ custodial funds in interest bearing accounts absent specific court order could have potentially damaging consequences upon the interests of the litigants. For example, if the clerk placed the funds in interest bearing accounts that required investment for a certain minimum period of time, and the court ordered disbursement before that time period had elapsed, the clerk could face penalties for such early withdrawal. These penalties would diminish the value of the funds in the clerk’s custody, to the detriment of the litigants’ interests. The majority’s sweeping conclusion imposes enormous administrative burdens upon the clerk, especially in terms of record keeping and accounting duties.
In order to avoid these potentially deleterious consequences of its own ruling, the majority elects to remand the matter with directions that the trial court hold “further proceedings on whether financial institutions exist which will pay interest on litigants’ funds while at the same time accommodate the needs of the clerk.” (161 Ill. App. 3d at 804.) However, this remedy does not cure the error.
By remanding with such directions, the majority assumes the propriety of an individual trial court’s determination of comprehensive supervision over the clerk’s placement of all custodial funds in general. I am disturbed by such an assumption. I find no legal support in the majority decision for the proposition that a trial or appellate court should issue a general order to the clerk, of the nature the majority anticipates here, by this adoption of the policy proposed by the plaintiff. This court is not sufficiently informed to decide whether there is substantial merit as a matter of policy in the plaintiff’s suggestion that the clerk adopt a comprehensive procedure for administration of litigants’ custodial funds so that they are placed in interest bearing accounts, under all or certain circumstances and absent or regardless of court order. That determination is more appropriately a matter for Illinois legislative enactment or Illinois supreme court rule, after full study and debate upon the wisdom of such a plan as well as the various means of its implementation.
Parenthetically, I observe that such remand with directions also creates a procedural anomaly. The record shows that the clerk, rather than file an answer to plaintiff’s complaint, filed a motion to dismiss the pleading. During the pendency of the clerk’s motion to dismiss, plaintiff filed a motion for summary judgment. The trial court then entered an order that allowed the clerk’s dismissal motion and dismissed the complaint with prejudice. The court did not rule upon the plaintiff’s summary judgment motion, since no ruling thereon was required in view of dismissal of the complaint.
Upon review, the majority ostensibly finds that plaintiff’s complaint states a claim for which relief may be granted, although the majority also determines that plaintiff is not entitled to retrospective monetary damages. In its analysis, however, the majority’s substantive reasoning amounts to the allowance of plaintiff’s motion for summary judgment with respect to the clerk’s “fiduciary duty.” This result is premature and prejudicial to the clerk. It rules upon substantive matters before the clerk has been provided an opportunity to file an answer to the complaint or a response to the motion for summary judgment. It also provides relief amounting to a declaratory judgment with respect to the clerk’s “fiduciary duty,” even though no such declaratory relief is requested in the plaintiff’s complaint.
I would also note that the majority’s ruling regarding plaintiff’s request for retrospective damages amounts, in substance, to affirmance of the trial court’s dismissal of plaintiff’s claim to the extent that the pleading requests such monetary relief. I would agree that the trial court properly dismissed the plaintiff’s request for retrospective monetary damages.
For these reasons, and expressing no opinion on whether the clerk is or should be required, pursuant to Illinois statute or supreme court rule, to place litigants’ custodial funds in interest bearing accounts, I respectfully dissent from the majority decision.