Sturges, Cornish & Burn Co. v. Cornish, 125 Ill. App. 401 (1906)

March 10, 1906 · Illinois Appellate Court · Gen. No. 4,566

125 Ill. App. 401

Sturges, Cornish & Burn Company v. Judson H. Cornish.

Gen. No. 4,566.

1. Assignment of errors—when deemed waived. Errors not argued are deemed waived.

2. Levy—when action of court in releasing, will not he reviewed. In an attachment proceeding the action of the court in releasing a levy is not subject to review until final judgment has been rendered and entered in such proceeding.

Action of assumpsit. Error to the Circuit Court of Rock Island County; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1905.

Writ dismissed.

Opinion filed March 10, 1906.

Btjlkley, Gray & More and Robert R. Reynolds, for plaintiff in error.

John O. Burchard, for defendant in error.

Mr. Justice Dibell

delivered the opinion of the court.

Sturges, Cornish & Burn Company, a corporation, brought suit in assumpsit in the court below against Judson H. Cornish and also sued out an attachment and caused it to be served on the Fremont Butter Tub Company, a corporation, as garnishee, and caused said writ to be levied upon 100 shares of the stock of the last named company as the property of defendant. Defendant moved to quash said levy, and plaintiff moved to strike that motion from the files. These motions were heard. Plaintiff’s motion was denied and defendant’s motion was granted, and the levy of the attachment upon the capital stock was quashed. . Plaintiff took a bill of exceptions containing the proof upon said motions. The garnishee answered interrogatories, and defendant afterwards traversed the affidavit for an attachment and filed a plea in bar. There was a jury trial and a verdict for plaintiff on both issues, the damages being assessed. Defendant moved for a new trial. It was denied as to the issues in bar, and plaintiff had judgment for its damages. The court granted a new trial of the issues in attachment, and that is still pending in the court below. Plaintiff sued out this writ of error. Two of its assignments of error question the judgment for the damages, but they are not argued, and the proof heard upon the trial before the jury is not in this record. Those assignments of error are waived. The other assignments question the action of the court in releasing the levy upon the stock, and in not refusing to entertain that motion.»

There is no final judgment upon the issues in attachment. That matter is still pending in the court below. If when they are tried again the verdict and judgment shall be against plaintiff, then the release of the levy upon the stock will not harm plaintiff. The attachment suit cannot be brought here by piecemeal. There must be a final judgment upon the issues in attachment before the interlocutory questions here discussed can be presented to this court for decision. The writ of error is therefore dismissed, with leave to the parties to withdraw the several papers filed by them, if they shall be so advised.

Writ of error dismissed.