11 Ill. 223 | Ill. | 1849
These cases came before the Court from Morgan county, upon an agreed state of facts; from which it appears, that writs of attachment were sued out against Carlisle, one at the suit of Rucker & Gordon, and another at the suit of Collins & Kellogg;' and both made returnable to the September term, 1849, of the Morgan Circuit Court. That Carlisle, previous to said term of Court, executed a power of attorney, authorizing the entry of judgment against him, in favor of Davis Fuller, at the September or any subsequent term of said Court. For some cause, the September term was not holden, and a special term was appointed, and held in November following; at which special term, judgments were rendered in the attachment suits, and also by confession upon the warrant of attorney in favor of Fuller; and the Court directed that the proceeds of the property attached, be applied pro rata to the plaintiffs in said three suits, according to the amount of their several judgments. It' is insisted by the attaching creditors, that the order allowing Fuller to share with them in the proceeds of the property attached, is erroneous. The correctness of this order depends entirely upon a statutory enactment. Sec. 26 of ch. 9, R. S., declares that, “ in all cases where more than one attachment shall be issued against the same person or persons, and returned to the same term of Court to which they are returnable, or where a judgment in a civil action, which shall also be rendered at the same term against the defendant, who is the same person and defendant in the attachment or attachments, the Court shall direct the clerk to make an estimate of the several amounts each attaching or judgment creditor will be entitled to out of the property of the defendant attached, either in the hands of any garnishee or otherwise, after the sale and reecipt of the proceeds thereof by the sheriff, calculating such amount in proportion to the amount of their several judgments, with costs, as the same will respectively bear to the amount of the sum received; so that each attaching and judgment creditor will receive his just part thereof, in proportion to his respective demand.35 The provisions of this section provide for dividing pro rata among attaching creditors, whose attachments are returned and returnable to the same term of Court, without regard to the time when judgments are obtained, the proceeds of the property attached. But to entitle a party in a civil action to share in such proceeds, he must obtain judgment at the term to which the attachments are returned. His commencing suit to the same term is not sufficient, but the law requires that he should obtain a judgment at that term. If, therefore, the civil action, commenced to the same term of court as the attachments, should, for any cause, be continued, although without the fault or consent of the plaintiff in such action, he would thereby lose the right to share with the attaching creditors in the proceeds of the attached property ; and this though the attachments should also be continued and judgments eventually entered in all the causes at the same term of Court. In this ease the judgment in favor of Fuller was not rendered at the same term of Court to which the attachments were returnable, and it was, therefore, erroneous to direct that Puller should share pro rata with the attaching creditors, in the distribution of the proceeds of the attached property. It is true that it was no fault of Fuller’s that the regular September term was not held; and had it been held, he could have obtained judgment, which would have stood upon the same footing as the judgments in the attachment suits.
It has been insisted that, inasmuch as the law declares that all process made returnable to a regular term, shall be deemed in law returnable to the special term when one is appointed, that therefore the writs of attachment in this case are to be regarded as returnable to the November special term. This provision of the statute has reference to process made returnable to a regular term beyond the special term. Suits commenced to a regular term subsequent to the special term, and before its appointment, would by this statutory provision become returnable to the special term, but cases which had been made returnable to a prior regular term would still be so returnable, although continued into the special term for further action.
Why the Legislature should have provided for an equitable distribution of the proceeds of attached property among creditors, whose attachments are returnable to the same term, although judgments may be entered in said attachment suits at different terms, while a creditor in a civil suit should not be permitted to share with the attaching creditors, although his suit may have been pending at the same time with the attachments, unless he can obtain judgment at the term to which they are returnable, is not for the Courts to inquire. The whole matter is one strictly of statutory regulation; and when the Legislature has clearly declared its intention, the Courts 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.
The judgment of the Circuit Court, directing the proceeds of the attached property to he distributed pro rata to Fuller and the plaintiffs in the attachment suits, according to the amount of their several judgments, is reversed, and the cause remanded.
Judgment reversed.
