145 Ill. 177 | Ill. | 1893
delivered the opinion of the Court:
Upon the facts stated, the only question for our decision is, was defendant in error, the National Bank of Illinois, entitled to the fund in the hands of the sheriff, to the exclusion of plaintiffs in error, or had the latter a prior right thereto to the extent of their judgment.
Plaintiffs in error base their claim to the fund upon section 37 of the Attachment act. [S. & C., vol. 1, page 325.] That section, so far as needed for the purposes of this decision, is as follows: “All judgments in attachment against the same defendant, returnable at the same term, and all judgments in suits by summons, capias or attachment against such defendant, recovered at that term, or at the term when the judgment in the first attachment upon which judgment shall be recovered is rendered, shall share pro rata, according to the amount of the several judgments, in the proceeds of the property attached, either in the hands of a garnishee or otherwise.”
Counsel for plaintiffs in error, in his argument, proceeds upon the theory that the levy of the writ of attachment in the John Spry Lumber case, held the property levied upon until the plaintiffs in error had prosecuted their suit in attachment to judgment.
The language of section 37, supra, is: “All judgments in attachment against the same defendant, returnable at the same term,” etc.
If the General Assembly in passing said section had intended that the mere levy of the writ of attachment should have the effect of holding the property for the benefit of subsequent attaching creditors, it would certainly have used language to that effect. Suppose the John Spry Lumber Co. attachment had come to trial, and the attachment had failed, or that the plaintiff in that suit had failed to maintain its cause of action against the defendants, could the plaintiffs in error have still relied hpon that former attachment, as a basis for their claim to a distribution of the fund in question? It would scarcely be so contended. It is however admitted that no judgment was rendered in the Lumber Co. case, but the same was dismissed. The effect of that dismissal was as fatal to the claim now made by plaintiffs in error, as though the same*result in effect had been reached upon a trial of the case, no judgment having been rendered.
The case of Reeve et al. v. Smith et al. 113 Ill. 47, upon which counsel for plaintiffs in error relies, is not in point. In that case several persons brought suits by attachment against the Clinton Bridge Co., a non-resident corporation, and summoned the Chicago & Alton R. R. Co. as garnishee. Subsequently the Bridge Co. sold and assigned to one of the attaching parties all its claim against the R. R. Co., and it was held “that the attachment debtor could not dispose of its property to one creditor to the disadvantage of the other creditors.” In that case all the attachments were prosecuted to judgments. It is clear that the question involved in that case and decided has no pertinency to the issue here involved. It is true that it was no fault of plaintiffs in error that judgment was not rendered in the Lumber Co., case. It is also probably true that the Bank bought that claim with the intention of dismissing the suit and preventing a judgment thereon; but we know of no rule of law forbidding a bona fide creditor pursuing such a course to collect his debt. The rights of the parties here in issue are governed, entirely by the Attachment act. Its language being clear, nothing is left to construction. The courts can only give effect to its provisions as declared by the legislature. They “have no power to depart from the plain language and requirement of the statute for the purpose of establishing, as they may suppose, a more equitable rule.” Rucker et al. v. Fuller, 11 Ill. 223. This case, we think, upon principle fully sustains the views herein expressed. The judgment of the Appellate Court will be affirmed.
Judgment affired.