McElwee v. Wilce ex rel. Hill , 1898 Ill. App. LEXIS 424 ( 1899 )

Mr. Justice Shepard

delivered the opinion of the court.

The service of the garnishee writ upon Wilce did not create a lien in favor of McElwee & Company, the creditor, upon the moneys in Wilce’s hands. By it there was created a personal liability of Wilce to respond to any judgment that might be recovered against him, but nothing more. Bigelow v. Andress, 31 Ill. 322; Gregg v. Savage, 51 Ill. App. 281.

Wilce might, if he chose, as he did, pay the Otter Creek Company, in spite of the garnishment, but doing so was at his personal risk.

Having paid the Otter Creek Company, and having been required by law to pay, also, the attaching creditors of that company, Wilce had in effect paid his debt to the Otter Creek Company twice, and if the judgment of the attaching creditor of the Otter Creek Company had stood, he would have been remediless, if no bond had been given to him, except as against the Otter Creek Company for such double payment.

The judgment in the suit under which he had been compelled by law to pay the attaching creditor, having, however, been reversed, Wilce would have been entitled either in his own name or in the name of the Otter Creek Company, for his use, to recover back the payment thus illegally enforced from him, or he might recover, compulsorily or amicably, from the Otter Creek Company his overpayment to it, and leave that company to pursue whatever remedy it might have against the attaching creditor for having made upon execution an invalid judgment against it.

This latter was what Wilce in effect did. The Otter Creek Company had given him a bond, with Hill, as surety, to pay back to him whatever he might have to pay to the attaching creditor, and when he was compelled, by execution, to pay the attaching creditor, the Otter Creek Company, by Hill, paid him all that he had suffered by reason of such compulsory payment. He had no longer, either legally or equitably, any ground for complaint against anybody. He had then simply paid and paid but once what he owed to the Otter Creek Company.

If Hill has suffered because he gave a bond for the Otter Creek Company, his remedy is not at law through Wilce against the attaching creditors, who may have received money, which in equity and justice belongs to the Otter Creek Company. Hill can not recover through Wilce what Wilce could not recover.

It may or may not be that Hill can recover through the Otter Creek Company against the attaching creditors, McElwee & Company, what they have which may belong to the Otter Creek Company, but that question is not in this record.

Appellee in his brief says, and we agree with him, that “this suit must stand or fall on Wilce’s right to recover.” And in our view Wilce has no shadow of right to recover.

The question of the competency of Carney, one of the appellants (defendants) as a witness, is immaterial under this aspect of the case, and although he was probably not competent, it need not be decided.

JSTothing can be gained by remanding the cause and the judgment will, therefore, be reversed without a remanding order.