152 Ill. 313 | Ill. | 1894
delivered the opinion of the court:
We are disposed to concur with the reasoning of the Appellate Court in its opinion filed in this case, that appellant’s bill was properly dismissed for the reason that there had been no exhausting of his remedy at law by the issuance of an execution and a proper return thereof by the sheriff. It has been the uniform doctrine of this court that, as we said in Russell v. Chicago Trust and Savings Bank., 139 Ill. 538, in order to entitle the complainant in a creditor’s bill to a decree, it must appear that he has “exhausted his legal remedies by obtaining judgment, suing out execution, having the sheriff make proper efforts to collect the judgment by that means, and such efforts proving unavailing, by having him return the execution unsatisfied.”
The allegations in the bill in relation to the issuing and return of execution were not admitted by appellees in the pleadings. It was therefore incumbent upon appellant to prove them. The return of the sheriff endorsed on the execution failed to show that appellant had exhausted his legal remedies. On the contrary, it plainly appeared from the endorsement of the direction of appellant’s attorney to the sheriff, and the return of the latter, that the sheriff had made no effort whatever to collect the judgment, but that the return on the execution was in substance the act of appellant’s attorney, and that in making the return the sheriff exercised no responsibility whatever. It must be shown that the execution has been returned by the sheriff, unsatisfied, by reason of his inability to find property whereon to levy, (Durand v. Gray, 129 Ill. 9 ; Russell v. Chicago Trust cond Savings Bank, supra,) whereas, in the case at bar, it plainly appeared from the attorney’s instructions endorsed upon the writ, and the sheriff’s return, that the execution had been returned unsatisfied merely because the sheriff had been instructed to make such return. To be sure, an execution is the process of the judgment creditor, and is subject to his control. Still, he cannot so control it as to make the statute a nullity.
The judgment of the Appellate Court was right, and it is therefore affirmed.
Judgment affirmed.