Albright v. Herzog , 12 Ill. App. 557 ( 1883 )

McAllister, J.

Upon the argument we thought the decree below was erroneous on the ground that the bill might be regarded as a creditor’s bill, and thus create an equitable lien on the funds in the hands of the clerk as belonging to the judgment debtors, if not covered by the stipulation of record in the suit at law. But having since examined the bill, we find it wholly insufficient for that purpose; because it does not set forth the time when the execution was issued, when it was returnable, or the actual return of the sheriff thereon, in such manner as to show to the court that the plaintiffs’ remedy at law had been exhausted. Cassidy v. Meacham, 3 Paige, 311.

It is true the bill alleges that the defendants had no property subject to execution. • That, however, is not within the requirement of the statute, and besides, there was no sufficient proof of the fact.

But after repeated readings of the agreement of record in the suit at law, we are unable to come to any other conclusion than that, when the suit at law was finally decided in favor of the plaintiffs, and the court "awarded them a specific sum of money, the plaintiffs thereupon became equitably entitled, by force of the express terms of that agreement, to so much of the money deposited with the clerk thereunder, as would be sufficient to cover the sum so awarded to the plaintiffs. Looking at such stipulation or agreóment it will be perceived that it is headed with the title of the cause, and the words, “ Assumpsit and Attachment in Aid.” To the suit so described reference is made in the body of the instrument. Then it contains the following clear and unambiguous provision:

“And if said suit shall be finally decided and determined in favor of said plaintiffs, said clerk shall pay out of said money such sum as shall be awarded by the court to the plaintiffs; or if the same shall be finally decided and determined in favor of the defendants, said clerk shall pay over said money to said defendants, their assigns or legal representatives, and shall also pay any balance that shall remain after paying the amount awarded to said plaintiffs, if such award shall be made to them, to the defendants, in like manner.”

It seems to us that by that provision of the agreement, the only contingency requisite to giving the plaintiffs an interest in and right to receive a portion of said money so deposited, was such a final determination of the suit in favor of the plaintiffs, as that a sum of money was adjudged to be due, and was awarded by the court to them. That contingency happened, and they were entitled to the relief prayed. The decree of the court below dismissing their bill must therefore be reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.

Beversed and remanded.