Ill. Sup. Ct. R. 305
Commentary
(June 15, 2004)
Paragraph (a)
The amendment is designed to preserve the right of appeal. The traditional method of securing a judgment is to require an appeal bond in the amount of the judgment plus anticipated interest and costs. In recent years, changes in the insurance market have made appeal bonds costly in many cases and unavailable in some cases. When an alternative type of security (e.g., letters of credit, escrow agreement, certificate of deposit) offers comparable assurance of payment at lower cost, requiring an appeal bond needlessly increases the cost of appeal. When seeking to file a form of security other than an appeal bond, it is the judgment debtor's burden to demonstrate that the other form of security is an adequate substitute.
It is anticipated that the amount of the bond or other form of security will normally be in an amount sufficient to cover the judgment, interest, and costs. In some limited instances, however, the appeal bond requirement may be so onerous that it creates an artificial barrier to appeal, forcing a party to settle a case or declare bankruptcy. See, e.g., Price v. Philip Morris, Inc., 341 Ill. App. 3d 941 (2003), vacated by supervisory order No. 96644 (September 16, 2003). Thus, the amended rule gives the court discretion in a money judgment case to approve a bond or other form of security that covers less than the entire amount of the judgment plus anticipated interest and costs. This does not lessen the judgment debtor's obligation on the judgment, but simply allows the judgment debtor to obtain a stay of execution on the judgment pending appeal. In such a case, the last sentence of the amended rule makes clear that appropriate conditions shall be imposed to prevent the judgment debtor from dissipating assets that would otherwise be available for payment of the judgment if the appeal is unsuccessful. Thus, depending on the circumstances, a business may be precluded from selling or otherwise disposing of any of its assets outside the ordinary course of its business, or an individual might be prohibited from spending any sums other than are required for ordinary living expenses.
Paragraph (b)
This paragraph has been amended to clarify that it is inapplicable to appeals from judgments for money.
Paragraph (g)
This paragraph has been amended to be consistent with the provisions of paragraph (a) permitting, under certain circumstances, the filing of an appeal bond or other form of security in an amount less than the full amount of the judgment plus anticipated interest and costs.
Paragraph (h)
This paragraph has been amended to clarify that a motion to change the terms or the amount of the bond must be consistent with the provisions of paragraph (a).
Paragraph (m)
This paragraph has been added because the appellate court clerks may not have appropriate facilities for keeping original bonds or other forms of security.
Commentary
(December 17, 1993)
This rule has been reorganized to provide greater clarity to the practice of obtaining a stay of the trial court judgment. Paragraph (a) makes clear that the bond in a money judgment case must be sufficient to cover the entire amount of the judgment, interest and costs.
A certified copy of the reviewing court stay order transmitted to the trial court or administrative agency is substituted for the antiquated reviewing court clerk certificate, and the clerk's authority to approve security is removed.