58 Ill. App. 368 | Ill. App. Ct. | 1895
delivered the opinion of the Court.
Appellee, at the December term of the Superior Court, began attachment suit against W. F. Purteet, summoning the German-American Insurance Company as garnishee; the sheriff’s return upon this summons, it is said, is defective.
Granting that it is, we are of the opinion that such defect was cured by the appearance and answer of the garnishee. It is urged that a garnishee can not voluntarily come into court, and thus confer jurisdiction. The garnishee did not voluntarily come into court. Suit was begun and process issued against it; service was had upon it by delivering a copy of the writ to an assistant manager. The office of assistant manager is not one of those specifically mentioned in the statute, in the description of persons with whom, in the case of incorporated companies, a copy of the process may be left. The assistant manager of an incorporated company is ex necessitate an agent, and the statute provides that service may be made in the absence of the president, by leaving a copy with any agent.
The service was manifestly of such a character that the garnishee was not, in filing an answer, volunteering to give jurisdiction. It could not know what return the sheriff would make upon the process he had at least attempted to serve upon it. It would have been perilous in the extreme for it to have failed to answer, relying upon either the service or the return being insufficient.
It was not necessary that the garnishee should have been served ere judgment was rendered against the principal defendant.
Attachment proceedings arem rem,j the judgment against the principal defendant, where there is neither personal service nor appearance by him is not in personam, but merely against, to the extent of the interest of such defendant in the rem.
If no rem is ever laid hold of, or rather if no rem in which the principal defendant has an interest is seized, the suit fails; there is no judgment, because there has been laid hold of nothing against which a judgment can be pronounced. A garnishee may be summoned, he may answer, denying that he is indebted to or holds anything for the principal defendant; this answer maybe controverted; final judgment upon the seizure thus made may not be had for years; meantime the trial of the question of an indebtedness of the principal defendant is not delayed.
Appellant urges that until it appears by a proper return that the garnishee has been summoned, judgment can not be taken against the principal defendant; by the same course of reason it might be contended that judgment could not be pronounced against the principal defendant until it had been taken against the garnishee.
In the case of a garnishee, service of summons upon him and a proper return thereof does not establish that any rem has been laid hold of, i. e., that he owes the defendant anything.
It is the seizing of a rem in which the principal defendant has an interest that gives the court jurisdiction. Smith v. Clinton Bridge Co., 13 Ill. App. 572; Clymore v. Williams, 77 Ill. 618.
By a supplemental record filed in this cause April 1,1895, it appears that by order of the Superior Court, entered March 23, 1895, the court permitted the sheriff to amend his return, which he did by making the following return:
“ Served this writ on the within named defendant, The German-American Insurance Company, as garnishee, by' leaving a true copy thereof with Rogers Porter, who is assistant manager of said company, and who is an agent of said company, this 24th day of November, 1893, not having been able to find the ' president of said company in my county. The within named defendant, W. F. Purteet, not found in my county.
James H. Gilbert, Sheriff,
By C. J. Marvel, Deputy.”
A sheriff has power to amend his return, so as to make the same correspond with the facts. Spellmyer v. Gaff, 112 Ill. 29; Morris v. Trustees, 15 Ill. 266; O’Connor v. Wilson, 57 Ill. 226.
Such amendment may be made after a cause has been appealed. Ellis v. Ewbanks, 3 Scam. 584; Hawes v. Hawes, 33 Ill. 286; Toledo v. Butler, 53 Ill. 323.
The judgment of the Superior Court is affirmed.