Cummings v. Hummer , 61 Ill. App. 393 ( 1895 )

Mr. Justice Harker

delivebed the opinion oe the Coubt.

The only assignment of error discussed in the brief for appellants is that the court erred in dismissing their petition and rendering judgment against them for costs.

The obligation of appellee was to pay the order out of money coming to his hands as assignee, applicable to the payment of the Sheehey claim.

The order and its acceptance were conditional, and before appellants were entitled to an order of court directing its payment, it devolved upon them to show that the assignee had received funds belonging to the insolvent estate and that such funds were subject to the claim of the drawer of the order. This they failed to do. Indeed the proof affirmatively shows that no money had come to the hands of appellee applicable to the payment of Sheehey’s claim. The County Court could make no order for the payment by appellee as assignee, of the $923.83, when there was no money in his hands to pay it and none had been received by him.

The order of the County Court, dismissing the petition, does not leave appellant without remedy to collect their claim from the assignee, should the brewing company pay out as urged by counsel. They still have their accepted order and upon the occurrence of the conditions embodied therein, its collection may be enforced. Order and judgment affirmed.