Conn v. Caldwell , 6 Ill. 531 ( 1844 )

The Opinion of the Court was delivered by

Treat, J.

On the 24th day of February, 1842, Joseph Caldwell sued out of the Madison Circuit Court, an attachment against Joseph H. Conn, 'James R. Sprigg and William W. Greene. The writ of attachment was levied on certain real estate, and on the steam boats “Caspian” and “Osage.” The sheriff’s return stated, that on the day succeeding the levy, the steam boats were released by order of the sheriff.

The declaration was in assumpsit, on three promissory notes. The defendants appeared, and pleaded non assumpsit-. On the 4th day of October, 1842, this issue was heard by the Court, and found for the plaintiff, and - his damages were assessed at the sum of twelve thousand, nine hundred, twenty three dollars and forty six cents. A judgment was thereupon rendered, that the plaintiff recover of the defendants the said sum and costs; that he have execution therefor, to be levied of the real estate attached, and the steam boats “Caspian” and “Osage;” and also, that he have execution generally for his damages and costs.

To reverse that judgment, the defendants prosecute a writ of error.

Since the suing out of the writ of error, the original return of the sheriff on the writ of attachment has been amended in the Circuit Court, and the amendment certified into this Court, and made part of the record. It appears from the amended return, that the steam boat “Osage,” at the time of the levy, was freighted and on her passage from St. Louis to the ports on the Illinois river; that it was agreed between the plaintiff and the master, that the boat should proceed On her voyage, and return, and be delivered to the sheriff, subject to the attachment; that the boat was thereupon released, for the purpose of the voyage, but has never been re-delivered.

The errors assigned questioned the propriety of the judgment entered. It is insisted in the first place, that the judgment is erroneous, because it awards execution generally against the defendants.

- Where a judgment by default is rendered in a suit by attachment, without personal service of process on the defendant, the judgment is in rem, and the estate attached is alone liable for its payment. In such case, a special execution issues for the sale of the specific property. But where the defendant is sérved with process, or appears to the action, the judgment is in personam, and the plaintiff is entitled to a general execution thereon. In this case, the defendants pleaded to the declaration, and the cause was fully determined on the merits. The judgment is, therefore, as conclusive between the parties, as if the action had been instituted in the ordinary way. The plaintiff having the right to a general execution on the judgment, the Court committed no error in awarding it.

In the next place, it is insisted that the judgment is erroneous in awarding a -special execution. It is contended, that the property attached was released by the appearance of the defendants. This position is not tenable. This precise question was before this Court at the present term, in the case of Martin v. Dryden, (ante, 187). This Court there held, that an appearance of the defendant did not, of itself, discharge the property attached; but that the defendant in order to release it from the lien acquired by the levy, must either replevy the property, or give security for the payment of whatever judgment may be rendered in the cause, as provided in the 29th section of the Attachment Act. In this case the defendants neither replevied the property, nor gave special bail. The lien created by the levy became perfect by the judgment, and the plaintiff was entitled to a special execution for the sale of the property, except such as he had voluntarily relinquished.

The Circuit Court decided correctly in embracing the steam boat “ Osage” in the award of execution. That boat was released from the custody of the sheriff, for the purpose of the voyage, with the express understanding that the boat should be re-delivered and continue subject to the attachment. The lien on the boat was not thereby extinguished, but still subsists as between the parties to this suit.. If, in the mean time, third persons have become interested in the boat, a different question may arise.

The steam boat “Caspian” was absolutely released, and the judgment is erroneous in including it in the award of execution. For this error; the judgment must be reversed with costs. The cause, however, need not be remanded. It was fully adjudicated in the Court below, and the proper judgment can be entered in this Court. A judgment must be rendered here, that the plaintiff recover of the defendants the sum of twelve thousand, nine hundred, twenty three dollars, and forty six cents with legal interest from the fourth day of October, 1842. On this judgment, the plaintiff can have execution generally, and also a special execution for the sale of the real estate attached, and the steam boat “Osage.”

Judgment reversed.