Brewster v. Riley, 19 Ill. App. 581 (1886)

June 9, 1886 · Illinois Appellate Court

19 Ill. App. 581

George H. Brewster v. Eugene Riley et al.

1. Attachment — Judgment by confession. — Where creditors A and B on March 21st sued out writs of attachment against appellee’s estate, returnable to the April term, and caused them to he levied upon his goods, and at the April term recovered judgments, and special executions were awarded, and March 23d, a judgment by confession without summons or ccqiias was entered against appellee, upon his judgment note of that date in favor of his wife, and execution upon it was levied upon the goods, and March 26th creditor 0 began an action of assumpsit against appellee, attachment in aid was sued out returnable to April term, and at such term judgment recovered, etc., held, that the plaintiff in the. judgment by confession was not entitled to share pro rata with the attachment creditors A, B and C, in the proceeds of the property attached and sold.

2. Distribution of attached property — Bona pides of judgment. — The court, upon the hearing o£ the matter of the distribution of the proceeds of property attached, has jurisdiction to enter into the investigation offered as to the bonafides of a judgment by confession where it is material to do so.

Appeal from the Superior Court of Cook county ; the Hon. Elliott Anthony, Judge, presiding.

Opinion filed June 9, 1886.

Tolman sued out of the superior court, March 21, 1885, a writ of attachment against the estate of Eugene Riley, returnable to the April term, 1885, of said court, and caused it to be levied upon the goods of Riley on said March 21st. At the said April term Tolman recovered judgment in the suit for §565, and special execution was awarded. On said 21st of March Brewster sued out of the same court an attachment against said Riley, returnable to said April term, which he caused to be levied on the same goods of Riley on said 21st of March, but subsequent to the levy of Tolman’s writ. At said April term, Brewster had judgment in his suit for §362.70, and special execution was awarded.

At the March term, 1885, of said court, and March 23, 1885, a judgment by confession, without summons or capias, was entered against said Riley, upon his judgment note of that date, in favor of Rose Riley, for §1,940, and an execution upon it was levied upon said goods March 23, 1885, subsequently to the levy of both said attachments. March 26, 1885, Barm began an action of assumpsit against said Riley, in said superior court, and on the same day sued out, and caused to be levied on the same goods, an attachment in aid returnable to said April term; at which term said Barm recovered in said suit a judgment against said Riley for $704.75, on which a special execution was awarded.

The property so levied upon, consisting of a stock of dry goods, was sold by the sheriff under the execution in favor of Tolman, and realized, above all costs 'and expenses, the sum of §1,293.90, which was paid into court.

Upon a motion on behalf of said Brewster, at the February term, 1886, of said couit, all the parties in interest being present, the above facts being stipulated, the court was asked to make distribution of the said money among the several judgment creditors pursuant to law. Upon the hearing of that motion said Barm offered to prove that the said judgment in favor of said Bose Biley was not based upon a hon.o fide claim, and that the same was fraudulent. But the court refused to hear evidence upon that question. To which ruling said Barm and said Brewster duly excepted. The court adjudged and ordered that said sum of §1,293.90 be distributed among the said Tolman, Brewster, Bose Biley and Barm, pro rata, in proportion to the amounts of their said respective judgments against said Eugene Biley. To which order the said Tolman, Brewster and Barm duly excepted, and bring the case here for revision.

Messrs. H. S. & F. S. Osborne, for appellant;

cited Bucker v. Fuller, 11 Ill. 223; Pollock v. Slack, 92 Ill. 221.

Mr. R. W. Clifford, for appellee;

that the Attachment Act should be liberally construed, cited Hannibal & St. J. R. R. Co. v. Crane, 102 Ill. 249.

McAllister, J.

The first question is whether the ruling of the court was correct in excluding the offer on the part of Barm to prove that the judgment in favor of Bose Biley, entered upon confession, was not based upon a Iona fide claim, but was fraudulent. Section 39 of the Attachment Act says: “ The court may, at any time before the proceeds of any attached property have been paid over to the judgment creditors, order the whole, or any part thereof, to be paid into court, and may malte any and all such, orders concerning the same as it shall deem just.”

Section 41 declares: “This act shall be construed in all courts in the most liberal manner for the detection of fraud.”

Manifestly that judgment by confession was open to attack on the part of Barm on the ground that it was not based upon a Iona fide indebtedness, and was fraudulent as to ereditors of Riley. We are of opinion that the court, upon the hearing of the matter of the distribution of the proceeds of the property attached, had jurisdiction to enter into the investigation offered as to the Iona fides of the judgment by confession where it is material to do so, but that, from the view we take of this case, such an inquiry was 'wholly immaterial.

The other question is as to the propriety of the order of the court that the plaintiff in the judgment b}r confession was entitled to share pro rata with the attachment creditors in the proceeds of the property attached and sold.

Those attachment creditors all had their respective writs of attachment sued out in March, in time for and returnable to the April term of, the superior court, 1885, at which term judgment in their respective suits was obtained, and special execution awarded. The attachment in favor of-Tolman and that in favor of Brewster were each sued out and levied March 21, 1885. The judgment by confession in the same court was not entered until March 23, 1885, and the execution issued upon it and levied on that day created a lien subsequent to that of both the above mentioned attachments ; so that, by the general rule, the attachment creditors being prior in time were prior in right of lien. . To escape that result the plaintiff in the judgment by confession invokes the provisions of § 37 of the Attachment Act as follows: “ All judgments in attachment against the same defendant, returnable at the same term, and all judgments in suits by summons, capias or attachment against such defendant, recovered at that term, or at the term when the judgment in the first attachment upon which judgment shah be recovered is rendered, shall share pro rata, according tc vthe amount of the several judgments, in the proceeds of the property attached, either in the hands of a garnishee or otherwise.” 1 Starr & Cur. Stat., p. 325.

The judgment in favor of Rose Riley was neither in fact nor legal effect a judgment in a suit by summons, capias or attachment against Eugene Riley, but a judgment by confession, by means of a warrant of attorney executed by said Eugene Riley. Rot was it entered at the same term as that at which all the judgments in the attachment suits, or any of them, were entered.

We are therefore of opinion that the judgment hy confession in favor of Rose Riley did not come within the letter or spirit and intent of said statute, and that the court below erred in directing that she share to rata with said attachment reditors in said proceeds.

Under the section above quoted, said proceeds should have been distributed among the three attachment creditors, Tolman, Brewster and Barm, 'pro rata, according to the amount of their respective judgments.

The order of the court below will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Order reversed.