Gasch v. World's Fair Excursion & Transportation Boat Co. ex rel. Fehr, 59 Ill. App. 391 (1895)

June 24, 1895 · Illinois Appellate Court

59 Ill. App. 391

F. E. Gasch v. World’s Fair Excursion and Transportation Boat Company, for the Use of Gustav A. Fehr.

1. Garnishment—Rights of the Garnisheeing Creditor.—The rale in a proceeding by garnishment is that the garnisheeing creditor has no greater right to recover of the party garnisheed than has the execution debtor in whose name the suit is brought.

3. Same—Between Creditor of a Corporation and Subscribers to the Capital Stoeh.—A judgment creditor of a corporation against which an execution has been returned unsatisfied, can not reach by process of garnishment the unpaid portion of subscriptions to the capital stock of the corporation in cases where, as between the corporation and the sub- ■ scribing shareholder, no liability by the latter to pay anything more exists.

Garnishee Proceedings.—Appeal from the Circuit Court of Cook County; the Hon. Samuel P. McConnell, Judge, presiding. Heard in this court at the March term, 1895.

Reversed.

Opinion filed June 24, 1895.

Kraft, Williams & Kraft, attorneys for appellant.

«I. Kent Green, attorney for appellee.

Mr. Justice Shepard

delivered the opinion of the Court.

The appellant was summoned as a garnishee in a cause wherein Gustav A. Fehr had recovered judgment against the appellee, World’s Fair, etc., Company, for $327.45, upon which an execution was returned unsatisfied.

The appellant was the holder of five shares of the capital stock in the said World’s Fair, etc., Company, of the par value of $100 each, for which he was an original subscriber and had paid for the same at the rate of $50 for each share, under an agreement with said company that such payment was in full payment and satisfaction for each and all of said shares. He was not liable or indebted to said company on atiy other account.

Humorous questions affecting the proceedings that were taken are argued, but we waive consideration of all but one, which controls all the rest. That question is, can a judgment creditor of a corporation against which an execution has been returned unsatisfied, reach by process of garnishment the unpaid portion of subscriptions to the capital stock of the corporation, in cases where, as between the corporation and the subscribing shareholder, no liability by the latter to pay anything more exists ?

■ We have decided the identical question in the negative in Sangamon Coal Co. v. Richardson, 33 Ill. App. 277, and the decision is supported by the cases therein cited. The rule in a proceeding by garnishment is that the garnisheeing creditor has no greater right to recover of the party garnisheed than the execution debtor in whose name the suit is brought.

Hot until, at least, after the discharge given to appellant by the appellee company has been set aside in equity as in fraud of creditors, can its creditors succeed by garnishee process in recovering an unpaid amount of the subscription for shares of its capital stock.

The cause was heard by the court alone, and judgment rendered solely upon the interrogatories to appellant and his answers thereto, wherein the precise question was raised, and the judgment will therefore be reversed without remanding the cause.