35 Ill. App. 393 | Ill. App. Ct. | 1890
This is a suit commenced by Carr against Ferguson et ah, in attachment, and the appellants were summoned as garnishees. The court, trying the case without a jury, found that the appellants were indebted to the appellees, and rendered a judgment accordingly for the use of Carr.
As the judgment is to be reversed upon other grounds, it is not now necessary to inquire whether the evidence supports the finding. The original affidavit was filed October 11,1886, and alleged that Heeld, one of the appellees, resided at Chicago, in the county of Cook, and had departed from the State.
October 2, 1888, under leave to make Goodbody, one of the appellees, a defendant in the suit, which before he had not been, an amended affidavit for attachment was filed which repeated the allegation that Heeld had departed from this State, and also alleged that “his place of residence at the date of the issuing of the original writ was Chicago, Ills.”
Ho new bond was then filed. The writ of attachment which was then (October 2, 1888,) issued, was therefore issued upon an affidavit which stated where the residence of Heeld was two years earlier, and without any bond as to Goodbody. We all agree that the court had no jurisdiction to enter, as it did, judgment by default against Heeld.
It is necessary under the statute, Sec. 22, Attachments, that notice to a defendant upon whom personal service can not be liad, shall not only be published in a newspaper, but a copy of the notice must be mailed to him. Both of these prerequisites are jurisdictional. Thormeyer v. Sisson, 83 Ill. 188. And the record must affirmatively show jurisdiction, where it is based upon publication, or it is void collaterally. Haywood v. Collins, 60 Ill. 328. When the statute adds mailing to publication, one is as indispensable as the other. Werner v. Werner, 30 Ill. App. 159.
The record proper is silent as to whether a notice was mailed to Heeld or not, but on the trial of the issue between the appellees and appellants there was evidence of such mailing to him at Chicago. How the probability that a defendant will receive a notice mailed to him at his place of residence is much greater than that he will see a notice published in a newspaper at another place, and an allegation in an affidavit that his residence two years earlier was at a place from which he had departed, is no evidence that his residence is there at the time the affidavit is made.
The principle on which Campbell v. McCahan, 41 Ill. 45, and Foster v. Illinski, 3 Ill. App. 345, were decided, makes such an uncertainty fatal.
The majority of the court are also of the opinion that the judgment as to Goodbody was void, because as to him there was no bond. “ Every attachment issued without a bond and affidavit taken, is hereby declared illegal and void, and shall be dismissed.” Sec. o, Attachments.
However numerous may be the defendants in an action, the steps by which jurisdiction over them respectively is obtained are several as to each. The subjection of each to the action of the court depends upon what has been done as to him, and not upon the standing which others may have. If the proceedings which touch him would have been void had he been sole defendant, they are not validated as to him by their effectiveness as to others. The provision in Sec. 28 of the act for amendment in case of “insufficiency” of the bond, does not extend to a case of no bond at all. After judgment in the original action by Carr against the appellees, by leave of the court a new bond was filed by Carr, in which Goodbody was one of the obligees; but if the view above stated is correct, such action was of no avail.
At the second term after the judgment was entered against the appellants, Heeld appeared in the Superior Court, and released all errors that might have intervened in entering the judgment against him six months before.
What might be the effect of this between him and Carr it is not necessary to consider. But the liability of the appellants, if any there be, as garnishees, is statutory, and not dependent upon the favor of Neeld toward either of the parties.
If the judgment against Neeld was void, no act of his could make it binding. “A confirmation of a void thing avails nothing.” See authorities cited in Wurster v. Reitzinger, 5 Ill. App. 112.
The want of jurisdiction over Neeld and Goodbody, the appellants had a right to insist upon. Pierce v. Carleton, 12 Ill. 358; Empire Co. v. Macey, 115 Ill. 390.
Such want of jurisdiction over them made the judgment of Carr against all the appellees, in effect, a judgment only against the appellees other than Neeld and Goodbody. Credits due to several jointly can not be taken on proceedings against only a part of them. Drake Att., Sec. 567 et seq.; Waples Att. 205.
The garnishee would not be protected, even by payment under such proceedings, against a subsequent suit by all the joint creditors. Hawes v. Waltham, 18 Pick. 451.
The judgment is therefore reversed and the cause remanded.
Reversed and remanded.
