dissenting.
I respectfully dissent. I would reverse the denial of the motion to quash the garnishment summons. I would base this result solely upon the stipulated agreement between the parties, but I would enforce that agreement on the basis of what appears to me to be Illinois public policy. Because the plaintiff would then not prevail in her attempt to collect upon her civil rights judgment, I would affirm the denial of attorneys’ fees involved in the attempted collection.
Illinois practice and procedure govern this attempted garnishment in aid of execution of a money judgment. Rule 69(a) of the Federal Rules of Civil Procedure clearly provides that the “procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought . . .. ” Gabo-vitch v. Lundy, 584 F.2d 559 (1st Cir. 1978); Slaughter v. Winston, 347 F.Supp. 1221 (E.D.Va.1972), aff’d., 476 F.2d 972 (4th Cir. 1973).1
The Illinois statute provides that the City of Chicago “shall indemnify” a member of its police department for injury caused a third person while the member is performing his police duties, without the contributory negligence of the injured person and in the absence of wilful misconduct by the member. Ill.Rev.Stat. ch. 24, § 1-4 — 5. This statute or its predecessor has been in effect for over 35 years. Since 1945, “the statute existed primarily for the benefit of policemen against whom' a judgment was rendered and not for the benefit of the person injured.” Andrews v. Porter, 70 Ill. *804App.2d 202, 217 N.E.2d 305, 309 (1966). When the Illinois Supreme Court affirmed the Andrews case in 37 Ill.2d 309, 226 N.E.2d 597, 598 (1967), the Court added:
The legislation is designed simply to benefit policemen against whom judgments may be rendered, preventing them from being restrained in performing their duty by fear that they might be called upon to pay substantial judgments.
Another purpose for the legislation was to relieve Chicago policemen from the burden of carrying expensive public liability insurance, which relief has the indirect effect of increasing their wages. Gaca v. City of Chicago, 411 Ill. 146, 103 N.E.2d 617, 622 (1952); Karas v. Snell, 11 Ill.2d 233, 142 N.E.2d 46, 52 (1957).
To permit the garnishment of police members’ salaries would fly in the face of the purposes of the indemnity statute and would obviously run counter to Illinois public policy as defined by that statute. Apparently Illinois courts have not addressed this issue, possibly because from 1867 (Merwin v. City of Chicago, 45 Ill. 133) to 1974 (Henderson v. Foster, 59 Ill.2d 343, 319 N.E.2d 789) municipal corporations were not subject to garnishment because of judicially-created public policy. If given the opportunity to consider the problem, Illinois courts may well re-create some type of municipal immunity to garnishment in those cases where the Chicago police indemnity statute is involved.
But in this case, we need not reach that issue. Here the parties negotiated a settlement and compromise on the basis that the judgment creditor would look to the City of Chicago for payment and would therefore not harass the police members with garnishment summons. The agreement to rely upon the City for payment can be determined on the present record without the necessity for reforming any document:
(1) The stipulation was executed by plaintiffs’ counsel and by an assistant corporation counsel for the City of Chicago.
(2) The stipulation provided that the plaintiffs “have discussed this matter of settlement thoroughly with their attorneys, and are aware of the method of payment of this judgment against the defendants, and they are satisfied . . . .” If the plaintiffs were to proceed to satisfy the judgment against the individual police members, this language would be meaningless surplusage.
(3) The stipulation provided that “in consideration for the herein mentioned settlement and payment thereof, plaintiffs ... agree to indemnify and hold harmless the City of Chicago, its officers, agents, servants, employees and Officers [named defendants] .... ” Why were the plaintiffs agreeing to indemnify and hold harmless the City of Chicago?
(4) The affidavit of assistant corporation counsel Fioretti alleges that plaintiffs’ counsel rejected offers of $12,500 and $15,-000 because it would take three or four years for the City of Chicago to pay the judgment or in the alternative the judgments could be sold at a discount of 15 to 20% for immediate cash. The stipulated settlement was $17,000. These facts were not contradicted by counter-affidavit.
(5) The settlement judgment was entered on April 11, 1979. On May 14, 1979, the plaintiffs filed another action in the Northern District of Illinois under No. 79 C 1939, against the City of Chicago and Clark Bur-rus, Comptroller of the City of Chicago, seeking immediate payment from the City. The plaintiffs’ complaint in that case contained the following allegations among others:
3. The Defendant CITY OF CHICAGO, is a duly constituted Illinois municipal corporation and is responsible, through its Department of Finance, for the administration and payment of “tort judgments” rendered against the City of Chicago, its agents, servants and employees.
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8. After the entry of a tort judgment, the practice and procedure of the Defendant City, through Defendant BURRUS, his agents, servants or employees, is to enter said tort “judgment” and amount on a “waiting list” for payment by the Defendants to the Plaintiffs.
9. By statute, custom and practice the Defendant City routinely pays tort judg*805ments (such as this one) entered against its agents, servants or employees (see CH. 24, § 1-4-5 and CH. 85, § 2-301 and 302, Ill.Rev.Stat.). In other words, the tort “Judgment” set forth herein and others like it are paid by the Defendant City of Chicago through Defendant Clark Bur-rus.
10. It is the practice, custom and policy of the Defendant City of Chicago and Defendant Clark Burrus to arbitrarily and capriciously, in violation of Plaintiffs’ rights to substantive and procedural due process withhold payment of tort “judgments” for up to four years.
In other words; the plaintiffs knew exactly what the procedure was in collecting a tort claim against a Chicago police member, they negotiated a more advantageous settlement based on that knowledge, and then they sought to circumvent that procedure by filing No. 79 C 1939 and by garnishment procedures in contravention of Illinois public policy.
The delay in payment of tort judgments against the City of Chicago probably calls for a remedy, but not at the expense of the people the indemnity statute was designed to protect.
. The two Fifth Circuit cases upholding the authority of a federal district court to order the payment of money judgments despite the language of Rule 69(a) are distinguishable in that federal jurisdiction would have been completely frustrated in each case. In Gates v. Collier, 616 F.2d 1268 (5th Cir. 1980), rehearing granted, 636 F.2d 942 (1981), Mississippi law prohibited the Satisfaction of any judgment against the state except by legislative appropriation, and Mississippi officials indicated that sufficient funds would never be appropriated. In Gary W. v. State of Louisiana, 622 F.2d 804 (5th Cir. 1980), cert. denied, 450 U.S. 994, 101 S.Ct. 1695, 68 L.Ed.2d 193 (1981), the same situation prevailed in Louisiana. In the present case, it is not contended that judgments against the City of Chicago are not paid, but only that payment is delayed.