Myres v. Frankenthal , 1894 Ill. App. LEXIS 437 ( 1894 )

Mr. Justice Gary

delivered the opinion oe the Court.

. On the 25th day of October, 1893, Emanuel Frankenthal was in possession of the place of business, stock of goods, etc., of the firm of Frankenthal, Freudenthal & Co., the members of which firm are the defendants in error, under a chattel mortgage executed to him by that firm.

On that day the plaintiff in error sued out of the Superior Court an attachment against the firm, and caused the writ to be served upon Emanuel as garnishee, and immediately thereafter, without notice to anybody, moved that court to appoint a receiver over the property so in the possession of Emanuel.

The court did it, and after very turbulent proceedings out of court, and much swearing in court, the court on the 2d day of November, 1893, set aside the order appointing the receiver.

The actual possession of the receiver continued until the 9th day of the same month, and the claim of the receiver allowed by the court for compensation and expenses is §2,027.76, of which nobody in this case complains.

In substance, the complaint of the plaintiff is that the court entered judgment against him for the amount, instead of directing the payment of at least some part of it by Emanuel, or, what would probably have amounted to the same thing, out of the property in the possession of the receiver.

We have heretofore decided, upon great and repeated consideration, that where a receiver is appointed without any probable cause for so doing, the party at whose instance the appointment was made should pay all the expenses. Einstein v. Lewis, 54 Ill. App. 520.

We are still of that opinion, and so reads the book upon which the plaintiff relies. Beach on Receivers, Sec. 773.

It is not, in this case, a question whether the compensation of the receiver is contingent upon the ability of the plaintiff to pay, but the question is, shall he be made to pay if the court can compel him to do so.

If in this case the court had authority to appoint a receiver, that authority was wholly statutory, derived from sections which will be quoted. A court of law has no such inherent authority; it is a branch of equity jurisdiction.

This was a case of an attachment in aid under Sec. 31, Ch. 11, and under Sec. 21 the garnishment was made. The proceedings thereafter are under Ch. 62, Garnishment. See Sec. 5, Ch. 62.

So much of that chapter as can be said to apply in any way to this controversy, is as follows:

Sec. 20. When any garnishee 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, he shall deliver the samé, or so much thereof as may be necessary, to the officer who shall hold the execution in favor of the plaintiff, in the attachment suit or judgment, which shall be sold by the officer and the proceeds applied and accounted for in the same manner as other goods and chattels taken on execution.

Sec. 21. When it shall appear that such goods, chattels, choses in action, or effects in the hands of a garnishee are mortgaged, or pledged, or in any way liable for the payment of a debt to him, the plaintiff may be allowed, under an order of the court or justice of the peace, for that purpose, to pay or tender the amount due to the garnishee; and he shall thereupon deliver the goods, chattels, choses in action and effects, in the manner before provided, to the officer who holds the execution.

Sec. 22. If the goods, chattels, choses in action or effects are held for any purpose other than to secure the payment of money, and if the contract, condition or other thing to be performed, is such as can be performed by the plaintiff without damage to the other parties, the court or justice of the peace may make an order for the performance thereof by him. Upon such performance, or a tender, the garnishee shall deliver the goods, chattels and effects in the manner before provided, to the officer who holds the execution.

Sec. 23. All goods, chattels, choses in action and effects received by the officer under either of the two preceding sections, shall be sold and disposed of in the same manner as if they had been taken on an execution in any other manner, except that from the proceeds of the sale the officer shall repay the plaintiff the amount paid by him to the garnishee for the redemption of the same, with interest thereon, or shall indemnify the plaintiff for any other act or thing by him done or performed, pursuant to the order of the court or "justice of the peace for the redemption of the same.

Sec. 24. 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 the defendant, with or without condition, the court or justice of the peace may make any and all proper orders in regard to the delivery thereof to the proper officer, and the sale or disposition of the same, and the discharging of any lien thereon, and may authorize the garnishee to sell any such property, or collect any choses in action, and account for the proceeds thereof; or, if the proceeding be in a court of record, the court may 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.

Sec. 25. If any garnishee refuses or neglects to deliver any goods, chattels, choses in action or effects in his hands when thereto lawfully required by the court or justice of the peace or'officer having an execution upon which the same may be received, he shall, if the proceeding be in a court of record, be liable to be attached and punished for contempt, or the court may enter up judgment for the amount of the plaintiff’s judgment, and award execution thereon against the garnishee; or, if the proceeding be-before a justice of the peace, be liable to the plaintiff for the full amount of his judgment against the defendant, -and judgment may be entered against him therefor.

Sec. 26. Hothing contained in this chapter shall prevent the garnishee from receiving any goods, chattels, choses in action or effects in his hands for the payment of any demand for which they are mortgaged, pledged or otherwise liable at any time before the amount due to him is paid or tendered, if such sale would be authorized as between him and the defendant.

Sec. 27. The court or justice of the peace may order the costs of the proceedings in any garnishment to be paid by the plaintiff, or out of the effects or credits garnished, or by the garnishee, or may apportion the same as shall appear to be just and equitable.

It is apparent that the word “ receiving ” in the second line of section 26 should be “ selling;” “ such sale ” in the last clause of the section refers to that word.

Sections 20 to 23, inclusive, relate wholly to the duty of the garnishee, the privilege of the plaintiff and the duty of some officer who shall hold an execution in favor of the plaintiff.

The provisions are not complete; they contemplate that there will be, but do not direct that there shall be, another execution sued out upon the judgment under which the garnishment proceeds.

Without such other execution the various proceedings directed or permitted by those sections could not be had. Then in section 24 comes the power of the court to enforce the performance of the duties, or the benefit of the privileges, "defined in the preceding sections, and se'ction 25 provides the methods in which the court may compel obedience ta, or reparation for disobedience of, the orders made under section 24, and makes clear that such orders are only to be made when there is an execution in the hands of an officer. That there is difficulty in arriving at a consistent construction of all the sections with each other may be conceded; but such concession is only an acknowledgment that the legislation; is imperfect; or, as the Supreme Court say of it in Capes v. Burgess, 135 Ill. 61, “ obscure.” For example, they contemplate a sale by a constable or sheriff of choses in action, which are not subject to levy and sale on ordinary executions. Crawford v. Schmitz, 41 Ill. App. 257.

That the various -sections quoted were intended as a substitute or equivalent for a judgment creditor’s bill as provided in Sec. 49, Ch. 22, Chancery, would seem probable, as a first impression.

And if so intended, the provisions of those sections can not be made operative until there is a judgment, though under other sections, effects in the hands of a garnishee could probably be stopped to await a judgment against the original defendant; however, no such question is now before us.

We hold, therefore, that no case was before the Superior Court which warranted any action by that court under section 24; that the appointment of the receiver was not even colorably right, and that under section 27 the duty of the court was to put “ the costs of the proceedings ” upon the plaintiff, who had wrongfully started them.

On the 4th day of ¡November, 1893, while the receiver was yet in possession, “ The court, with the consent of all parties, including said Emanuel Frankenthal, hereby directs that the sum of $1,200 be forthwith deposited by said Emanuel Frankenthal, garnishee herein, with the clerk of this court; said fund to be applied under the direction of this court toward the payment of whatever sum this court may hereafter decree that said receiver shall be awarded in the premises.” (Quotation from the record.)

The words “to be applied under the direction of this court,” did not require that the court should so direct unless such direction would be just and equitable.

From all the circumstances it is apparent that this consent was extorted, and the court rightly directed the return of the money. The judgment is affirmed.