| Ill. | Jun 15, 1849
The Opinion of the Court was delivered by
At the May term, 1843, of the Will Circuit Court, Patrick Doyle recovered a judgment against Steele & Amer, for $113-96. E. C. Fellows. Esq., was the plaintiff’s attorney. An execution was issued on the judgment on the 16th of May, 1843, and placed in the hands of H. D. Risley, then sheriff, who returned it in August, 1846, satisfied in full. He settled the costs of the suit, and paid to Fellows $26-00 on account of the judgment. At the May term, 1848, Fellows, as the attorney of the plaintiff, moved the Circuit Court for a judgment against Risley for the amount collected on the execution and not paid over. Risley filed an answer to the application, in which he admitted the balance to be in his hands, expressed his readiness to pay it to any person authorized to receive it, but alleged as a reason why he had not paid it to Fellows, and why he could not safely pay it, that Doyle departed this life in the year 1844, and that no person had administered on his estate. At the same term, the Court made an order that Risley forthwith pay to the plaintiff, or to Fellows, the sum of $109-64, and interest at the rate of twenty per cent, per annum, from the return of the execution. Risley then filed a bill in Chancery against Fellows and the unknown legal representatives of Doyle, setting forth the foregoing state of facts, and reiterating the allegations in his answer, and praying that the judgment against him might npt be enforced. On this hill, he obtained an injunction. At the succeeding term, the Court, on the appearance of Fellows, sustained a motion to dissolve the injunction and dismiss the bill. From that decision, Risley prosecuted an appeal to this Court.
As the case is here presented, the allegations of the bill must be considered as true. Do they show sufficient cause for the interference of a Court of Equity, to prevent the enforcement of the judgment against the sheriff? The answer must be in the affirmative. The proceeding against the sheriff was carried on, and the judgment obtained, in the name of a dead man. There was, in fact, no plaintiff. The proper parties were not before the Court, so as to vest it with jurisdiction. The proceeding being without vitality, the judgment was a nullity. It would constitute no bar to another proceeding in the name of the personal representative of Doyle. The authority of Fellows to receive payment was revoked by the death of his client; and from that time, the legal right to the money was vested in the personal representative, in whose name alone it could be demanded, and proceedings instituted for its recovery. The sheriff could not safely do otherwise than retain the runds, until demanded by the personal representative. He is not in any default till such demand is made. The demand by Fellows established no official delinquency, for his/’authority to receive the money being at an end, the demand was nugatory. He had no personal interest in the collection of the money, for all claim on the plaintiff for professional services' in the case was fully discharged by the payment made him by the sheriff.
The cases cited by the counsel for the appellee, to show that this defence was available in the proceeding at Law, and therefore cannot be made the basis of a suit in Equity, have no application. There was no vitality in that proceeding ; the decision of it could neither conclude the sheriff, nor the representatives of Doyle.-
The decree of the Circuit Court will be reversed with costs, and the cause remanded for further proceedings, with leave to the defendant to answer.
Decree reversed.