125 Ill. 28 | Ill. | 1888
delivered the opinion of the Court:
On the 12th day of October, 1885, the Simmons Hardware Company, a business corporation of St. Louis, Missouri, sued an attachment out of the circuit court of Adams county, against the estate of Benjamin Bowen, a resident of and doing business in the State of Missouri, to which the sheriff of the county, three days afterwards, made the following return:
“I have been unable to find property of the within named defendant, Benjamin Bowen, to satisfy the within attachment, and I have served the within writ upon the within named garnishees, Thomas Pope, William R. Lockwood and John W. Heitz, co-partners under the name and style of Pope, Lockwood & Co., by reading the within to said John W. Heitz, on the 12th day of October, A. D. 1885, and giving to said Heitz one dollar and ten cents; and by reading the within writ to within named Thomas Pope, on the 13th day of October, 1885; and by reading the within writ to the within named William B. Lockwood, on the 14th day of October, A. D. 1885.
“I can not, in my county, find the within named Benjamin Bowen this 15th day of October, A. D. 1885.”
The garnishees answered, admitting an indebtedness to Bowen of $141.49, and also that at the time of the service of the writ on Heitz, Lockwood had in his possession, in the State of Missouri, certain promissory notes belonging to Bowen, on various parties then in and resident of that State, and that before service of said writ on Lockwood the said notes were delivered by him to Bowen, in pursuance of a demand made therefor.
The notes in question amounted, in the aggregate, to $336, and are conceded to have been worth as much as $100. It is an undisputed fact that the notes, neither at the time of the service of the writ on Heitz, nor afterwards, were outside of the State of Missouri. Upon the service of the writ on him, it appears that the firm sent a dispatch to Lockwood, who was temporarily in Missouri, for the purpose of making a settlement with Bowen, informing him of the service of the writ. The latter, after taking legal advice, delivered the notes to Bowen, notwithstanding the service upon his firm, but on the same advice he declined to pay over to him the $141.49 cash, and hence there is no controversy as to that.
The plaintiff filed a replication to the answer of the garnishees, and the issues of fact thus formed were tried before the court and a jury, resulting in a verdict for the plaintiff for the $141.49 only, upon which the court entered judgment. On the plaintiff’s appeal, the Appellate Court affirmed the judgment.
The only question to be determined on the present appeal arises on the instructions given to the jury. The court, in a number of instructions, told the jury, in effect, that if they found the facts respecting the notes as above stated, they should find as to them for the defendants. The question thus raised is simply this: Can one be charged as garnishee in respect to promissory notes, or other evidences of indebtedness, executed by third parties, and belonging to the defendant in the attachment, which, at the time of the service of the garnishee process, and during the pendency of the suit, were in another State ?
So far as we are advised, this question is now before this court for the first time, though the courts of other States, in giving a construction to their own statutes on the subject of garnishment, have frequently had occasion to pass upon it, and a number of them have answered the question directly in the negative. On the other hand, the case of Childs & Co. v. Digby, 24 Pa. St. 23, is the only one to which we have been referred which seems to hold to the contrary, and the rule as laid down in that case appears to have been since changed by statute, so as to make it conform to the holdings of the courts in the other States. We perceive nothing in this case to justify a departure from the general rule on the subject, as just indicated. That the rule has the merit of convenience and certainty, is clear, and that it is sound on principle will fully appear from the following authorities: Bates v. Chicago, Milwaukee and St. Paul Ry. Co. 60 Wis. 302; Sutherland v. Second Nat. Bank, 78 Ky. 253; Plimpton v. Bigelow, 93 N. Y. 596; Pennoyer v. Neff, 95 U. S. 724; Waples on Attachment and Garnishment, 226, 227, 249, 334, et seq. The case of Illinois Central Railroad Co. v. Cobb, 48 Ill. 404, also has more or less bearing on the question.
The conclusion reached by the courts below appearing to be in conformity with the general current of authority, we perceive no cause for disturbing the judgment. It will therefore be affirmed.
Judgment affirmed.
