Natywa ex rel. Ellguth v. Wachowski, 171 Ill. App. 457 (1912)

June 17, 1912 · Illinois Appellate Court · Gen. No. 16,324

171 Ill. App. 457

Adam Natywa for use of Joseph Ellguth, (Adam Natywa and Albert Wachowski, Plaintiffs in Error), v. Albert Wachowski, (Joseph Ellguth, Defendant in Error).

Gen. No. 16,324.

1. Garnishment—when garnishee cannot complain. If a garnishee answers and admits owing the debtor the amount of the debt he has no ground for complaint on judgment being entered for such amount, even though the debtor has paid a part thereof.

2. Garnishment—effect of part payment of debt on judgment for full amount. Since it is the proper practice, where a garnishee admits owing the amount of the debt, to enter judgment against him for such an amount, the original judgment debtor cannot move to vacate the attachment judgment on the ground he has paid a part of the debt.

3. Garnishment—practice where part of debt paid by debtor. Where judgment is given against a garnishee for the full amount of the original judgment debt and the debtor had paid a part thereof, the disposition of the partial payment should he made on a hearing on an intervening petition of the debtor.

Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the March term, 1910.

Affirmed.

Opinion filed June 17, 1912.

Pease, Smietanka & Polkey, for plaintiffs in error.

Morris A. Weinberg, for defendant in error.

Mr. Justice Smith

delivered the opinion of the court.

Jospeh Ellguth obtained a judgment against Adam Natywa for the sum of $154.50. Ellguth then began a garnishment proceeding for his use in the name of said Natywa, as nominal plaintiff, against Albert Wachowski. The garnishee answered that he was indebted to said Natywa in the sum of, so far as disclosed by the record, $154.50, and judgment was accordingly entered against the garnishee, Wachowski, for the said amount. To reverse this judgment Wachowski and Natywa sue out this writ of error.

In Bank of America v. Indiana Banking Co., 114 Ill. 483, the court said: “By the practice which obtains in this State, the judgment against the garnishee must be rendered in favor of the attachment or judgment debtor, for the benefit of the attachment or judgment creditor, who is treated as the real plaintiff, against his own debtor. * * * It is equally well settled the judgment must, in form at least, be for the whole amount due from the garnishee, and whatever surplus there may be after paying the creditors entitled under the statute to share in the distribution to be made, belongs to the debtor, in whose name the suit is prosecuted." (Citing authorities.) This rule is approved in Kern v. Chicago Brewery Association, 140 Ill. 371, and Siegel et al. v. Schueck, 167 Ill. 522.

The plaintiff in error, Wachowski, has only to pay the amount of the judgment into court and he. will be protected therein, and having answered and admitted that there was due and owing from him to Natywa the said sum, he certainly has no ground of complaint.

The plaintiff in error, Natywa, made a motion to vacate and set aside the said judgment against the garnishee, Wachowski, on the ground that he, Natywa, had paid Ellguth, the beneficial plaintiff therein, the sum of one hundred dollars on account of the judgment Ellguth had recovered against him, Natywa, and introduced evidence tending to prove his contention.

The judgment against the garnishee being entered in accord with the law and the facts, as indicated, the said motion to vacate and set aside the same was properly denied.

The disposition of the said sum of one hundred dollars would be made by the court on a hearing on an intervening petition of the said Natywa; but it does not appear from the record what other, if any, proceedings were had as to the said claim made by Natywa, or what finding or order, if any, the court made as to the same.

The judgment is affirmed.

'Affirmed.