Netter v. Board of Trade , 12 Ill. App. 607 ( 1883 )

Bailey, P. J.

Section 21, Chapter 11, of the Revised Statutes directs, that when an officer is unable to find property of the defendant sufficient to satisfy an attachment, he shall summon the persons mentioned in the writ as garnishees, and all other persons in his county “ whom the creditors shall designate as having any property, effects, choses in action, or credits in his possession or power, belonging to the defendant, or who are in anywise indebted to the defendant,” and that the persons so summoned shall be considered as garnishees.

The fifth section of the statute in relation to garnishment provides, that when any person is summoned as garnishee upon any process of attachment, etc., the plaintiff may file interrogatories upon which he shall be desirous of obtaining the answer of the garnishee, “ touching the lands, tenements, goods, chattels, moneys, choses in action, credits and effects of such defendant, and the value thereof in his possession, custody or charge, or from him due and owing to the said defendant at the time of the service of said writ, or at any time after, or which shall or may thereafter become due.”

The seventh section provides that, when the plaintiff shall allege that the garnishee has not truly discovered the lands, tenements, goods, chattels, moneys, choses in action, credits and effects of the defendant, in his possession, custody or charge, or from him due and owing to the defendant, etc., the court shall proceed to try the cause as against such garnishee. Subsequent sections give the right to adverse claimants to intervene, and have their claims to any goods, chattels, choses in action, credits or effects in the hands of the garnishee adjudicated; and also give the right to the garnishee, when he has any goods, chattels, choses in action or effects, other than money, belonging to the defendant, or which he is bound to deliver to him, to deliver the same to the officer holding the attachment.

It is then provided by section 24, that “ when it shall appear that any garnishee has in his hands, or under his control, any goods, chattels, choses in action or effects, belonging to or which he is bound to deliver to defendant, with or without condition, ” the court may make any and ail proper orders in regard to the delivery thereof to the proper officer, and the sale and disposition of the same, and the discharging of any lien thereon, and may authorize the garnishee to sell any such property, or collect any dioses in action, and account for the proceeds thereof, or appoint a receiver to take possession and sell, collect, or otherwise dispose of the same, and make all orders in regard thereto which may be necessary or equitable between the parties.

The proceeding by garnishment is statutory, and can not be extended beyond the plain provisions of the statute. I. C. R. R. Co. v. Weaver, 54 Ill. 319. By that proceeding, the creditor may reach debts owing to his debtor from the garnishee or lands, tenements, goods, chattels, moneys, dioses in action, credits or effects of the debtor in the possession, custody or charge of the garnishee. Beyond this the statute does not go. Unless the garnishee is shown to have in his possession, custody or charge, property or effects of the debtor, or to be indebted to the debtor, he must be discharged. Furthermore, the property or rights sought to be reached by process of garnishment, must be of a legal as contradistinguished from an equitable character. They must be such as are capable of recovery or enforcement by action at law by the debtor against the garnishee. Webster v. Steele, 75 Ill. 544; May v. Baker, 15 Id. 89.

That the plaintiffs have failed to make out a case against the garnishees within the terms of the statute, is, we think, entirely beyond question. They have established no indebtedness from the garnishees to the defendant, nor have they shown that the garnishees have in their custody, control or charge, any property or effects of the defendant, of a legal or even of an equitable character. The only thing shown or pretended is; that the defendant holds certificates of membership in these two boards. Said certificates are shown to be in the hands of the defendant and not of the garnishees. In no proper sense can they be said to be in the possession, custody or charge of the garnishees. They were not property which the garnishees were bound to deliver to the defendant, as the defendant already had them, nor could they, so far as appears, have been made the subject-matter of any action at law by the defendant against the garnishees.

The power of the court to appoint a receiver to take possession of and sell or otherwise dispose of property sought to be reached by process of garnishment, is, by the very terms of the statute, limited to cases where there are goods, chattels, etc., in the hands of the garnishee which belong to the defendant, and which the garnishee is bound to deliver to him. Ho such ease has been shown, and the court therefore decided correctly in refusing to appoint a receiver. And as no case was made tending to charge the garnishees, they were entitled to be discharged, and to have the attachment dissolved as to them, and the court decided correctly in entering an order to that effect.

<5 It will be seen that the question whether certificates of membership in said Boards are property capable of being reached by creditors by proper legal process, elaborately argued by counsel, does not necessarily arise in this case, and we therefore express no opinion in relation to it. Perceiving no error in the record, the judgment will be affirmed.

Judgment affirmed'.