delivered the opinion of the court:
The principal question raised and discussed on this record is whether the failure of complainants below to obtain a judgment at law against the defendants Judson in this State is, on the facts alleged, fatal to their bill. That a judgment at law and execution thereon, with a return of nulla bona, are prerequisites to the maintenance of a creditor’s bill proper has never been questioned. Our statute expressly so provides. A bill in the nature of a creditor’s bill, the object of which is to remove a fraudulent incumbrance or other obstruction out of the way of a levy and sale under an execution, may be filed immediately upon obtaining judgment. The judgment is, however, no less essential in such a case than that of a simple creditor’s bill. The reason frequently given for requiring such judgment at law in both classes of cases is, that to allow a complainant to establish his claim in the first instance in a court of chancery would be to deprive the defendant of the right of trial by jury. It is also well settled that the judgment at law necessary to give the court jurisdiction in such cases must be a judgment in the jurisdiction where the bill is filed. Winslow v. Leland, 128 Ill. 304, citing Steere v. Hoagland, 39 id. 264.
But counsel for appellants insist that there is a third class of cases in which a creditor may maintain a bill in equity for the satisfaction of his debt,—that is, where he seeks to reach property or funds accessible only by the aid of a court of chancery,—and that in such cases no judgment at law is necessary. Expressions are referred to in some early decisions of this court which give support to this contention. (Greenway v. Thomas, 14 Ill. 271; Miller v. Davidson, 3 Gilm. 518; Getzler v. Saroni, 18 Ill. 511.) But it has never been decided in this State that the mere *350fact that assets of a debtor out of which satisfaction is sought can only be reached through a court df equity, will give that court jurisdiction in the absence of a judgment at law, and the uniform holding that in bills of the second class above mentioned such a judgment must be averred and proved is irreconcilable with any such decision. If a case can arise in which relief may be sought in equity in the first instance, it must appear that the complainant’s demand is of such an equitable character that it can only be established in a court of chancery, otherwise the right of the defendant to a trial by jury upon a legal claim would be taken away, and the reason for the rule, as above stated, destroyed. And so we said in Dormueil v. Ward, 108 Ill. 216, where it was insisted that the case came within an exception to the general rule requiring a judgment (p. 219): “These so-called exceptions, when properly understood, are rather nominal than real, for a bill of this character will not lie in any case where the claim, as it is here, is a purely legal demand. In all cases where such a bill has been maintained the claim of the complainant has had some equitable element in it,—such as a trust, or the like. But in the absence of some element of this character there is a want of jurisdiction to adjudicate upon the claim at all, and it is upon this fundamental doctrine the rule controlling this class of cases rests. When, however, a judgment has been obtained and an execution has been returned nulla dona, and it can be shown the defendant has equitable assets which can not be reached by execution, or that he, or others acting in concert with him, have fraudulently placed obstructions in the way of collecting the claim by execution, a case will then be made out for the interposition of a court of equity. The jurisdiction of the court thus invoked is known as a part of the auxiliary jurisdiction of a court of equity; but as a condition precedent to its exercise, where the demand is purely legal, as it is here, the claim must be reduced to a judgment and an execution thereon *351returned nulla bona. Such is the settled law of this State, and it is supported by the general current of authority.” See, also, Shufeldt v. Boehm, 96 Ill. 560.
If it were true, as alleged in the bill and urged in the argument, that by reason of the non-residence of the defendants Thomas P. and Jennie H. Judson an action at law cannot be maintained against them in this State, that fact would furnish no sufficient reason for changing the well settled rule, uniformly adopted, making a judgment at law necessary. (Shufeldt v. Boehm, supra.) We are not, however, prepared to hold that this bill shows that such a judgment cannot be obtained. If Mrs. Judson’s ownership in the property in question, or the proceeds thereof when sold, is such an interest as can be seized by a decree in chancery and applied in satisfaction of her indebtedness, it is difficult to see why, under our attachment and garnishment laws, an action at law cannot be maintained against her. Cases like Baker v. Copenbarger, 15 Ill. 103, West v. Schnebly, 54 id. 523, and Farrar v. Payne, 73 id. 82, decided under the law as it existed prior to the passage of the act of March 31, 1869, re-enacted December 23,1871, and still in force, are not authorities on this question. The present statute authorizes the levy of a writ of attachment upon any lands or tenements in and to which a debtor “has or may claim any equitable interest or title.” (Rev. Stat. chap. 11, sec. 8, p. 154.) It would seem clear that Mrs. Judson, on the facts here alleged, “has or may claim” some equitable interest in the property in the hands of the executor of her father’s will. But if she cannot, upon what principle can her creditors attack it? If it be conceded that the property could not be levied upon, still the executor, if he has in his “possession or power” any property, effects, choses in action or credits belonging to Mrs. Judson, may be summoned as garnishee in an action by attachment. (Ibid. sec. 21.)
In Steib v. Whitehead, 111 Ill. 247, certain real estate was devised to trustees to keep rented, make repairs, *352etc., and “pay over all remaining rents and income in cash into the hands of my said daughter Juliet, in person, and not upon any written or verbal order, nor upon any assignment or transfer by the said Juliet,” and it was held that the net income was not liable to garnishment in the hands of the trustee for debts of the beneficiary, Juliet. The decision was placed upon the sole ground that by the terms of the devise it appeared the testator intended to place it beyond the control of his daughter or her creditors while in the hands o.f the trustees. It is fairly inferable, from what is there said, that but for such manifest intention on the part of the testator the fund would have been the subject of garnishment.
But it will not be necessary to pursue this inquiry further. It may be that, upon a full answer in garnishment, involving all the facts and a construction of the will of Solomon Harkey, such an action cannot be maintained, but on the facts here alleged, which are admitted by the demurrer, we see no reason for so holding. Aside from that question, appellants’ claim being purely a legal one, they cannot reach Mrs. Judson’s property through a court of equity without first obtaining a judgment against her in a court where she may avail herself of a jury trial and all legal defenses which she may have to such claim, and if it be-true that no such judgment can be obtained, then, however great the hardship, they must forego the satisfaction of their debt out of the property sought to be reached by this bill.
The judgment of the Appellate Court will be affirmed.