Knebelkamp v. Fogg

Mr. Presiding Justice Wall

delivered the opinion oe the Court.

It appears from the record, that on the 13th day of October, 1891, Fogg filed with the clerk of the Circuit Court of Adams County, an affidavit for attachment against the property of Breitenberger and caused two writs of attachment to be issued, one directed to the sheriff of said Adams county, and the other to the sheriff of St. Clair county. The writ to Adams was returned served by reading to said Breitenberger; that to St. Clair was returned served by-reading to Knebelkamp as garnishee, who was named for such service in the writ.

There was no other return on either of the writs.

A declaration in assumpsit was filed, and such proceedings -were had between Fogg and Breitenberger that the former obtained a judgment against the latter for $851.81. Knebelkamp filed a plea in abatement averring that he lived and was served in St. Clair county, and that therefore the Circuit Court of Adams County had no jurisdiction of him. A demurrer was sustained to this plea, and he then filed his answer to the interrogatories. The plaintiff traversed the answer, and the issue thereby raised was submitted to a jury, and was found in favor of the plaintiff.

Judgment followed, from Avhich Knebelkamp has prosecuted this appeal.

The first question presented is whether the garnishee was properly served in St. Clair county on a writ issued from Adams.

It is provided by Sec. 13, Ch. 11, R. S., entitled Attachments, that “ the creditor may at the same time, or at any time before judgment, cause an attachment Avrit to be issued to any other county in the State where the debtor may have property liable to be attached, Avhich 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 Avith summons or makes appearance, the creditor shall not be entitled to judgment.” It Avas provided in Sec. 31, Ch. 9, of the Be-vised Statutes of 1845, that “When any attachment has issued out of the Circuit Court of any county, it shall be lawful for the plaintiff at any time before judgment to cause an attachment to be issued to any other county in this State where the defendant may have lands, goods, chattels, rights, credits or effects, which writ of attachment the sheriff to Avhom it shall be directed, shall levy on the lands, goods, chattels', rights, credits-or effects of the defendant in such county, and make return thereof as in other cases.”

In the case of Hinman v. Rushmore, 27 Ill. 509, the Supreme Court, referring to the earlier statute, said it was a rule of law, that to give the court jurisdiction in an attachment case there must be service on the defendant or his property, and the action must be commenced where the defendant has property or where he can be found, and that said thirty-first section was not designed to enable the court to acquire jurisdiction, but was designed in aid of another writ, "when the court has jurisdiction by virtue of the service of the other writ. See, also, Fuller v. Langford, 31 Ill. 248; Haywood v. McCrory, 33 Ill. 459.

The present Sec. 13, which appeared in the Revision of 1874, is Sec. 31 of the act of 1845, re-written, adding the proviso, which is, in effect, but the rule announced by the Supreme Court in Hinman v. Rushmore, as to the necessity of service upon the person or property of the defendant in the county where the suit is brought in order to give the court jurisdiction and to support a writ to another county.

It will be noticed that in Sec. 31 of the act of 1845, it is provided that the writ may go to any county where the defendant has “lands, goods, chattels, rights, credits or effects ”; and in Sec. 13 of the present act, “ to any county 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,” etc.

It is fair to construe the term “ property,” as used in Sec. 13, in its general and enlarged sense, and as designed to include all manner of property which may be reached in attachment proceedings.

So it was used, no doubt, in the first section, where it is provided that “ a creditor may have an attachment against the property of his debtor,” etc.

Sec. 8 provides that the officer shall “ execute such writ of attachment upon the lands, tenements, goods, chattels, rights, credits, moneys and effects of the debtor.” The appropriate mode of so executing the writ depends upon the character of property and its situation.

When any person is indebted to the defendant, or has “ any property, effects, choses in action or credits in his possession or power, belonging to defendant,” the writ is executed by serving such person as garnishee. The term “ property,” as used in Sec. 13, is not intended to signify . any particular kind of property, such as lands or chattels, . or property in any special condition as to possession, and so it is reasonable to say that under this section a writ of attachment may go to another county for the purpose of reaching, as a garnishee, any person who may be indebted to the defendant, as well as one who may have property, effects, choses in action or credits in his possession belonging to the defendant.

In the present Sec. 13, it is provided that the writ so issued to another county, “ shall be levied as other attachment writs.” While in Sec. 31 of the act of 1845, it was provided that “ the sheriff to whom it is directed shall-levy on the lands, goods, chattels, rights, credits or effects of the defendant in such county.” Ho doubt these expressions were intended to mean the same thing, and that the terms “ levy ” and “ levied ” were used in the general sense of taking or seizing by the means appropriate to the particular kind of property to be reached.

The cases cited by appellant in support of the point that when there is more than one defendant, the suit must be commenced in a county in 'which some one resides, are all, as will be found upon examination, where the suit was commenced by ordinary process of summons, and of course governed by Sec. 2 of the Practice Act, which is not applicable to proceedings by attachment. Field v. Shoop, 6 Brad. 445, and cases therein cited.

In Toledo, W. & W. Ry. Co. v. Reynolds, 72 Ill. 487, it Avas held that in garnishment proceedings (not by attachment) the writ might be sent to the county of the garnishee, and he be required to appear in the county where the judgment was rendered.

We are of the opinion the objection of the garnishee in this respect was properly overruled by the Circuit Court.

The second question is whether the evidence disclosed a state of facts rendering the appellant liable to be held as garnishee.

On the 14th of July, 1891, the Circuit Court of the United States for the Southern District of Illinois rendered a decree in chancery foreclosing a mortgage in a certain cause wherein the said Breitenberger was complainant, and the said Knebelkamp and others were defendants. The decree recited service upon all the defendants; found the sum due the complainant to be $1,064.85; ordered a sale of the mortgaged premises, and that if there was any deficiency the said Knebelkamp, who was found to be personally liable for the debt, should pay the same to complainant.

Here ivas an adjudication binding upon the parties that the garnishee was indebted to the defendant in attachment. It is, however, objected that indebtedness so merged in a judgment or decree, especially of another court of independent jurisdiction, is' not the subject of garnishment.

Without considering at length or in detail, the cases in other States in which the question has been discussed whether a judgment debtor can be garnisheed, we are of opinion that, under our statute, and in view of the rulings of our Supreme Court, there is no reason why the garnishee in this case could not be held. The statute (Sec. 21) designates as subject to garnishment, persons “who are in any wise indebted to such defendant.”

In Minard v. Lawler, 26 Ill. 301, a judgment debtor was summoned as garnishee in a proceeding wherein an execution against his judgment creditor had been returned nulla lona, and the Supreme Court seem to assume that the fact of the indebtedness being merged in a judgment was not important; that a judgment rendered against the garnishee was valid, and a payment of the same by him was valid as against his judgment creditor.

In Luton v. Haehn, for use, etc., 72 Ill. 81, which was a case where “ a judgment debtor in the Circuit Court was garnisheed on process issued by a justice of the peace,” it was expressly held that it can make no difference whether the garnishee is a judgment or a simple contract debtor, and that while some' inconvenience may arise in subjecting judgments to the process of garnishment, yet, that the statute is broad and comprehensive, and affording, in many instances, the only remedy the creditor has for collecting his claim, it should receive a liberal construction. This, also, was a proceeding under the general garnishment statute which provides that, where any person “ is indebted” to the defendant, he may be subjected to garnishment, (Sec. 38, Ch. 57, R. S., 1845,) which provision is no broader than that of Sec. 21 of the present attachment act.

The same principle was distinctly announced in Allen v. Watt, 79 Ill. 284.

In the case at bar no hardship can result to the garnishee, from the fact that his indebtedness has been ascertained and fixed by the decree of the Federal court.

A payment of the sum due will satisfy the decree, and no execution can issue against him under the decree, except for a deficiency remaining after a sale of the mortgaged premises. Ho such sale had been made when the cause was tried. The case of Steere v. Hoagland, 39 Ill. 264, cited by appellant, was a creditor’s bill, and it was therein held that a judgment of the Federal court, being the judgment of a court of another jurisdiction, will not furnish a basis upon which such a bill may be predicated in the courts of this State, but it is not in point upon the question here presented.

We are of opinion the indebtedness established by the decree referred to was subject to garnishment and that the objection urged by appellant, in that regard, is untenable.

Ho other objections are made against the judgment, and it will therefore be affirmed.