78 Ill. App. 407 | Ill. App. Ct. | 1898
delivered the opinion of the court.
This is"a garnishment proceeding instituted by the appellee. The People of the State of Illinois recovered a judgment against J. Alfred Organ in the County Court of McLean County for $100 and costs of suit, on the 14th day of December, 1897.. Execution was issued on such .judgment on the °15th day of February, 1898, and returned on the same day “Mo property found.” A garnishee summons was issued and served on George W. White, whom it was claimed was indebted to appellant Organ in the sum of $50 for laboras a farm hand.- Appellant Reeves'entered his appearance and filed an interpleader setting up that Organ had verbally assigned his claim against White to him for a valuable consideration.
This case was tried by the court and judgment was rendered for appellee. James M. Reeves and J. Alfred Organ bring the case to this court by appeal. The facts upon which this case was tried were stipulated. ■ From this stipulation it appears that on the 2d day of Februarjq 1898, J. Alfred Organ verbally assigned to appellant James M. Reeves an account for $50 due him for labor performed by him for George W. White, garnishee in this case.
Garnishment is an equitable proceeding. The assignment of the debt of "White to Organ'was an equitable assignment and will be protected and recognized against garnishment by a creditor of the assignor, if assigned before the garnishee process is served. Savage v. Gregg, 150 Ill. 161, and cases cited.
In the case- at bar the assignment of the- account by Organ to Reeves was for a valuable consideration. Reeves agreed to perform certain legal services for Organ, which he did render. This assignment was made on the 2d day of February, 1898. The garnishee process sued nut by appellee was served on White as garnishee on the 16th day of February, 1898. At .this time White did not owe Organ anything. What he had owed him was now due Reeves. “ An equitable assignment will secure the property against attachment for the debt of the assignor, though no notice be given prior to the attachment to the person holding the property, if it be given in time to enable him to bring it to the attention of the court before judgment is rendered against a garnishee.” Drake on Attachment, Sec. 527 (5th Ed.); Greenwich Ins. Co. v. Columbia Mfg. Co., 73 Ill. App. 560; Gregg v. Savage, 51 Ill. App. 281; Walters v. Washington Ins. Co., 1 Clark (Iowa), 411. White, the garnishee, had notice of the assignment of this account to Reeves before the hearing and before the judgment was entered, and that gives Reeves priority, and the right to the account against White. The court erred in refusing to hold as the law the third proposition of law submitted to the court by appellant Reeves. By this the court was asked to hold that it is not material that White had no notice of this assignment (to Reeves) before he was served with the garnishee summons or before he filed his answer. It is sufficient that notice of the assignment was brought to White pendente lite and before the hearing on the interpleader, and before any judgment on his answer. It is claimed by appellant Organ that the judgment introduced in evidence as the foundation for garnishment proceedings is invalid. It appears from the record that the grand jury of McLean county at the September term, 1897, of the Circuit Court, returned an indictment into court against J. Alfred Organ, charging him with an assault to do a bodily injury; that the Circuit Court ordered that this indictment be certified to the County Court for process and trial is not denied. The Circuit Clerk failed to indorse the certificate on the back of the indictment as required by statute, but a certificate in due form was made by the clerk on a separate piece of paper which also contained a fee bill. Such fee bill and certificate and indictment under the same cover were transmitted to the county clerk, but the certificate was not attached to the indictment. At the December term, 1897, he had his trial under this indictment and was found guilty by the jury of the offense charged in the indictment and sentenced to imprisonment in the county jail for one year, and to pay a fine of $100, and judgment was entered upon the sentence of the court.
The failure of the clerk of the Circuit Court to indorse -1 on the back of the indictment the statutory certificate, certifying the case to the County Court for process and trial, when the certificate and indictment are transmitted together under the same cover, does not vitiate the proceedings. It is at most, simply an irregularity that could have been cured if the attention of the court had been called to it. It is not the subject of attack in a collateral proceeding. The judgment is not void.
As White had notice of the assignment of the account against him by Organ to Reeves before the hearing on the interpleader or judgment on his answer, the judgment of the court should have been in favor of Reeves.
The judgment of the court below is reversed and the cause remanded.
