Nesbitt v. Dickover , 1886 Ill. App. LEXIS 310 ( 1886 )

Lacey, J.

Only two questions arise on this record :

First. Does the claim of a judgment creditor by service of garnishee process on the debtor of such judgment debtor take precedence in payment over the legal claim for labor and materials furnished by subcontractors of the judgment debtor used in the erection of the building of such garnishee, where proper lien notice is given to the latter, but subsequently to the service of such process ?

Second. Has the Justice of the Peace issuing such process jurisdiction to render judgment in favor of the garnisheeing creditor, against the garnishee, for more than §200, where the original judgment was for that sum but by reason of interest and costs exceeds it ?

We are inclined to hold both propositions in the affirmative. There is no question arising here against there being enough funds in the hands of the appellants at the time of the service of the garnishee process already earned by the judgment debtor to more than cover the claim of appellee’s garnisheeing creditor. Hnder the statute of 1869, the subcontractor had twenty days, after the completion of his subcontract, in which to give the owner notice of his intention to claim a lien, and that all payments to the original contractor before the expiration of the said'twenty days should be regarded as having been improperly made, as against the liens of such subcontractor. Havighorst v. Lindberg, 67 Ill. 463. But this law appearing too stringent and liable to work injustice toward those erecting buildings, and liable to compel them to pay more for their buildings than the original contract price, as Havighorst was compelled to do in the above case, the Legislature in 1874 amended the law, by which it was provided that “ no claim of any subcontractor, mechanic, workman or other person, shall be a lien, under Sec. 29 of this Act, except so far as the owner may be indebted to the contractor at the time of giving such notice as aforesaid, of such claim, or may become indebted afterward to him as such contractor.” Sec. 83, Chap. 82 R. S. 1874.

According to this provision, the only question under the facts of this case that can arise, and which is determinative of the point, is whether the service of the garnishee process prior to the notice is equivalent to payment by the owner of the building at the time of such service. If so, then the decision of the Circuit Court is correct; if not, it is not correct. We think the service of the garnishee process worked an appropriation from that time, of so much of the claim of the judgment debtor against the appellants as the judgment, interest and costs amounted to. From that time the garnishees could not voluntarily free themselves from the payment of the claim of the garnisheeing creditor, and the notice was only a legal demand from the day of its service, and compelled the appellants to respond to them for all the money in their hands, owing to appellee, not already appropriated by them, or which they had not become bound to pay in some other manner. From and after the date of the service of this garnishee process the appellee was not, in a legal sense, indebted to the appellants for the sum covered by this judgment. The courts in this State have always held that tlr garnishee must respond for every species of property in his hands, at the time of the service of the writ, belonging to the origina debtor, and all moneys owing him at that time. Thau is the form of all the interrogatories filed. “ What property had you in your hands at the time of the service of the writ, belonging to the original debtor, or what did you owe him at that time?” It is virtually an attaching process. The following authorities will show the holding of the courts, in this State, on the question: Smith v. Clinton Bridge Co., 13 Ill. App. 572; Glass v. Doane, 15 Ill. App. 66; McCoy v. Williams, 1 Gilm. 584; Nichols, Shepard & Co. v. Goodheart, 5 Ill. App. 574; Roche v. R. In. Ass’n, 2 Ill. App. 360; Drake on Att, Sec. 675. Directly in point is Payne v. Wilson, 74 N. Y. 348.

The case of Bigelow v. Andress, 31 Ill. 322, is of an entirely different nature. It was simply held in that case that the service of the garnishee process did not operate as a lien on the chattels held by the garnishee and 'belonging to the debtor so as to prevent the garnishee from selling them, but he would be compelled to answer for their value. He is held liable if he fails to produce the chattels.

We think the Justice, and therefore, the Circuit Court, had jurisdiction to render judgment for the judgment and the interest and costs, though it exceeded $200.

The statute is silent on the subject of the amount of the Justice’s jurisdiction in cases of garnishee on judgment re-' covered before him unless the case is covered by the general statute on jurisdiction which we do not think it is. The statute allowing a Justice to issue garnishee process to collect judgments on his docket would fail of its object, if the Justice had no power to give judgment for more than $200, for in many cases the interest and costs and judgment would far exceed that amount. There is no court save where the judgment is rendered that can issue the garnishee writ. T. P. & W. R. W. Co. v. Beynolds, 72 Ill. 487. The garnishee mode of collecting judgments is only a statutory mode of obtaining execution Bear v. Hoys, 36 Ill. 280; Mich. Cen. R. R. Co v. Keohane, 31 Ill. 144, and the statute authorizes . the Justice to enter judgment against the garnishee in case of default for the amount o the original judgment and costs. R. S., Sec. 8, Chap. 62. See Chanute v Martin, 25 Ill. 63. The garnishee proceedings is only an incident in the collection of the original judgment, and the amount of that judgment, interest- and costs was the test of its jurisdiction in this proceeding. The judgment of the court below is therefore affirmed. Affirmed.