Lord v. Babel

McAllister, J.

The court below sustained the plea in abatement interposed by the defendant in the attachment, by overruling the plaintiffs’ demurrer thereto and turning the latter out of court, as a consequence, before they had opportunity to try the issue upon the point as to the actual ownership of assets in the hands of Pettit, a garnishee summoned in the county of Cook, that being the county in which the suit was brought.

It seems to us entirely clear, that under the provisions of section thirteen of the Attachment Act the court could not be properly ousted of jurisdiction because of the issuance of an attachment to Kankakee county and personal service upon the defendant-there, if there were property rights or credits in the hands of Pettit which actually belonged to the defendant. That section reads: “ The creditor may, at the same time, or at any time before judgment, cause an attachment writ to be issued to any other county in the State, where the debtor may have property liable to be attached, which shall be levied as other attachment writs: Provided, that if no property rights or credits of the debtor are found in the county in which suit is brought, and no defendant is served with summons or makes appearance, the creditor shall not be entitled to judgmen t.”

Section thirty-one of the Attachment Act in the Revised Statutes of 1815 contained a similar provision as to the issuing writs to other counties. But in Ilinman v. Rushtnore, 27 111 509, the court held that it was never designed by that section to enable the court to acquire jurisdiction by virtue of service of such other writs. We think the same may be properly said of section thirteen of the present act. Jurisdiction can alone be acquired in the absence of personal service or voluntary appearance, in the county where the suit is brought, by the finding in that county of property rights or credits of the defendant. Plato v. Turrill, 18 Ill. 273; Fuller v. Langford, 31 Ill. 248; Haywood v. McCrory, 33 Ill. 459; Clymore v. Williams, 77 Ill. 618. In the latter case the court said: “It is indispensable, to give the court jurisdiction in attachment proceedings where there is no personal service, that it should appear that the writ was either levied upon property or served upon garnishees having effects, choses in action, or credits in their possession, or power, belonging to the defendant. Neither appears in the present case. No proceedings having been had against the garnishees, it can not be known whether they had effects, etc., in their possession or power, belonging to the defendant.” In the case at bar, a garnishee was summoned in the county of the suit, proceedings were had against him, resulting in his admitting effects in his possession which belonged either to Adam Babel or the defendant, George Babel; and an issue whether they belonged to the latter was regularly formed. If that issue had been determined in favor of the plaintiffs below, then the court had jurisdiction; if against them, it had not. The plea in this case must be regarded as a plea to the jurisdiction, and is unlike those in the class of cases where in ordinary suits at law the defendant is sued in a county where he does not reside or is not found, and to be good the plea should, by proper averments, have negatived all the facts upon which jurisdiction might depend. But it tendered no issue upon the question whether the property or effects in the hands of Pettit, the garnishee, belonged to the defendant or not. So that, by sustaining that plea by overruling the demurrer to it, the plaintiffs were turned ont of court without an opportunity to try the issne'upon that point made upon the answers of the garnishees, when, for aught we know, they might have been able to establish it in their favor by evidence. Such a result must necessarily be wrong; and for that error the judgment should be reversed and the canse remanded.

Reversed and remanded.