71 Ill. App. 601 | Ill. App. Ct. | 1897
delivebed the opinion of the Couet.
This was a proceeding in garnishment by the appellant against appellee, First Hational Bank of Earlville, as garnishee. Judgment was rendered June 7, 1888, in the Circuit Court of Lee County, in favor of Charles Pierce, against Joel W. Clark, for §1,048.28, and on the same day an execution was issued upon said judgment against the defendant therein. The execution went into the hands of the sheriff on the 9th day of June, 1888, and according to the indorsement thereon made by the sheriff, was served on the defendant therein, on the 18th day of June, 1888, and demand made. On the 15th day of September, 1888, the record shows the execution was filed with the clerk of the court, and after that date the following further indorsement appears to have been made upon the execution: “ I return this execution the 27th day of September, 1888, not satisfied, by order of the plaintiff’s attorney. (Signed) W. H. Woodyalt, sheriff.”
The garnishee proceedings in the case presented, are based upon the judgment, execution and return above mentioned.
On the trial, and without notice to Joel W. Clark, the execution debtor, the executors of the plaintiff in execution, and the beneficiaries in the proceeding, moved the court, and in this case, for leave of the court to the sheriff, who had made said return, then long out of office, to amend the return indorsed on said execution, in order that such return might show, in substance, that on the said 25th day of September, 1888, the said Joel W. Clark, defendant in execution, had no property in his county whereof he could make the amount of said execution, or any part thereof; which motion the court denied, and refused to grant leave to amend said return. The garnishee, appellee here, filed a special plea denying that execution had been returned “ No property found,” to which the court sustained a demurrer. After the order sustaining said demurrer, the garnishee answered the interrogatories, and therein also set up, in substance, the same matter of its special plea denying the return of execution “No property found.” On the final hearing the court entered an order dismissing the proceedings for want of jurisdiction, from which the appellants prosecute this appeal, assigning for error the refusal of the court to grant leave to the sheriff to amend the return of execution; the refusal of the court to hold certain propositions as law in the decision of the case, and that the court erred in dismissing the case for want of jurisdiction.
We shall consider these assignments of error in the order stated. We are of the opinion the court did not err in refusing leave to amend the return, for the reason the record of the original cause did not rest in this, and therefore the court had no power, in this proceeding, to make an order affecting the record in another cause, at that time not pending before it. Had such motion been made in the cause where the record of the return properly belonged, after notice to the execution debtor whose rights were to be affected, and the record of such motion made in that cause, and between the parties thereto, being brought to this court, the question would then, and only then, arise for decision.
Concerning the error assigned, that the court refused to hold certain propositions of law, we 'think the appellants were not in any manner injured by the refusal, as they had no application to the issue on which the case was disposed of. Therefore the court properly refused all propositions of law, of which complaint is made.
We come now to the consideration of the propriety of the court’s action in dismissing the case for want of jurisdiction. The statute (Sec. 1, Chap. 62, Starr & Curtis) provides that when a judgment shall be rendered by any court of record, and an execution against the defendant in such judgment shallbe returned by the proper officers, “Ho property found,” on affidavit, etc., it shall be lawful to issue summons, etc.
It was held in Chanute et al. v. Martin, 25 Ill. 63: “ The obvious design of the law was only to authorize such proceeding after a failure, where a reasonable effort has been made in good faith to collect the money by the ordinary process of the law.' It was only intended to be allowed when there is no property subject to execution, or when it can not be found by reasonable efforts of the officer and plaintiff in execution.” And in Mich. Cen. B. B. Co. v. Keohane, 31 Ill. 144: “ A party seeking the benefits of this provision must bring himself, substantially, within its provisions. * * * An execution must have been issued and returned ‘ no property found,’ to warrant the issuing of garnishee process, under this section. This is a statutory mode of obtaining execution after the means known to the common law have been employed and failed. And it can only-be resorted to after the requirements of the statute have been complied with, as conditions to issuing the process, Unless the return, in terms or substance, states that 6 no property is found,’ it is insufficient.” In the respect last above described it is likened unto a creditor’s bill. Dunderdale v. Westinghouse Electric Co., 51 Ill. App. 407.
In the light of the statute and the decisions under it, there seems little reason for the contention that the return here presented is sufficient to entitle the process to issue. It is wanting in the essential element of the legal requirement that no property of the defendant was found. He may have had unlimited property and the return of the officer be also true.
The order of dismissal for want of jurisdiction may not have been, technically, the correct judgment, but in its final effect was right. The judgment of the Circuit Court will therefore be affirmed.