Hems v. Arnold , 188 Ill. 527 ( 1900 )

Mr. Chief Justice Boggs

delivered the opinion of the court:

The appellant had two demands: one against the appellees and said Howe and Bodenschatz, as co-partners; the other against Howe and Bodenschatz alone, as co-partners, He instituted an action of assumpsit in the circuit court against the appellees to recover against them on the demand due from them and said Howe and Bodenschatz, which he might lawfully do, the severance being permissible for the reason the said Howe and Bodenschatz had made an assignment, as insolvent debtors, under the statutes of the State. In this action appellant recovered a judgment for the full amount due on that demand. The appellant also presented the same demand, together with his other demand against the insolvent debtors only, for allowance against the assignee of said insolvents, and obtained a judgment or order for the total of both of these demands. The dividend received by the appellant from the assignee constituted a payment of twenty per cent upon each dollar of each of these demands, and discharged pro tanto the indebtedness against the appellees and said insolvent debtors, for which appellant held a judgment in the circuit court against the appellees for the full amount thereof. The dividend was a payment by the two insolvent members of the original banking co-partnership on a demand against that co-partnership. Appellees were therefore entitled to have the judgment against them reduced to the extent the judgment plaintiff had received payment of the indebtedness for which the judgment was rendered.

The general rule with relation to the application of dividends declared in the settlement of insolvent estates when the claimant has independent or collateral security or a pledge for the security of his claim against the insolvent debtor, to which reference is made in In re Bates, 118 Ill. 524, has no application here. The judgment in favor of appellant against the appellees is in no sense standing as security for or as a pledge to secure the payment of the amount which Howe and Bodenschatz alone owed appellant. .

The judgment of the Appellate Court is correct, and must be and is affirmed.

Judgment affirmed.