Weaver v. Third National Bank , 56 Ill. App. 664 ( 1895 )

Me. Justice Boggs

delivebed the opinion of the Court.

The lien of judgments rendered at the same term of court is, under our statute, concurrent; neither lias priority; Sec. 1, Chap. 77, R. S., Judgments, etc. At common law where judgments were equal the judgment creditor who first had execution issued and levied, as a reward for his diligence obtained a priority in the proceeds of the sale of the property levied upon. Smith v. Lend, 29 Ill. 24; Freeman on Executions, Sec. 203. The common law right to thus secure priority was to some extent abridged by the enactment of the 13th section of said chapter 77 of R. S., which is as follows :

“ 13. When the lien of several judgments is concurrent by reason of the same having been rendered at the same term of court or on the same day in vacation, and execution issued upon any one of such judgments is levied upon property subject to such, lien, the property so levied upon shall be sold for the benefit of all executions issued upon such judgments, and delivered to the same officer or any of his deputies before sale; and the proceeds of such rate shall be divided upon the several executions pro rata, according to their several amounts.”

This section was enacted to enable the other judgment creditors or such of them as would comply with its provisions to secure equal priority with the creditor who by reason of his diligence was more favored than they by the existing rule of the common law. In order to secure this equality it is, however, incumbent upon them to comply with the requirements of the statute, that is, to lodge in the hands of the sheriff executions upon their judgments before sale was made under the executions issued by the more vigilant creditor. Otherwise the proceeds of the sale would be first applied to the discharge of the more favored judgment according to the course of the common law. The trial court held that the appellee complied with this statute and became entitled to share pro rata in the proceeds of the sale of the land. In this we think the court erred. The sale was made November 28, 1893. The sheriff then had in his hands only one valid execution, the one issued September 1, 1893, upon the judgment rendered in favor of the appellant. He still held possession of the execution that the appellee had caused to be issued on its judgment on the 20th day of March, 1893, but it vr&s functus officio, E‘ An execution,” it was said in Corbin v. Pearce, 81 Ill. 461, “ has no legal effect as such after its return day; the writ, whether returned by the officer or held in his hands, has no vitality whatever.” The 13th section before quoted provided a way by which the appellee might have become entitled to share pro rata with the appellant in the proceeds of the sale of the land but it failed to avail itself of it. The appellant was entitled to the advantage awarded by the law to the diligent and it was error to deprive him of it. No other question is presented by the record. The order and judgment of the Circuit Court is reversed and the cause remanded for further proceeding in conformity with the views expressed herein.