Bear v. Hays, 36 Ill. 280 (1865)

Jan. 1865 · Illinois Supreme Court

36 Ill. 280

John W. Bear v. William Hays.

1. Stamp act — garnishee process. Process against a garnishee, in aid of a suit at law wherein execution has been returned “nulla Iona," is not original process, and therefore, under the excise law, is not required to be stamped.

2. Married women—their rights wider the ad of 1861. The earnings of a married woman are not embraced in the act of 1861, to protect married women in their separate property; they belong to the husband—he alone is entitled to them. That act only applies to property, real and personal, and the rents, issues, increase and profits thereof, but not to the earnings of the wife.

Writ of Error to the Circuit Court of Macon county; the Hon. C. Emerson, Judge, presiding.

William Hays having obtained a judgment against one Eleanor Adams and W. B. Aaron, issued an execution thereon, which was returned nulla bona, whereupon he filed an affidavit, stating his belief that John W. Bear was indebted to Eleanor Adams, and caused him to be summoned as garnishee. The summons was duly served on Bear, and returned.

On the affidavit of the clerk of the court, that the summons had no revenue stamp, a motion was made to quash the writ, which motion the court overruled.

It appears that Bear was the sheriff of Macon county, and had employed Adams as his deputy, and that as deputy, and acting as jailer, Adams had a claim against the sheriff, amounting to one hundred and eleven dollars and sixty-nine cents, which the sheriff, on interrogatories, admitted to be due from himself to Adams.

Susannah Adams, the wife of the defendant, Eleanor Adams, filed her interpleader, claiming the whole amount due from Bear, as her own exclusive earnings as housekeeper, cook, etc., for the county jail.

On motion of Hays, the judgment creditor, this interpleader, by Mrs. Adams, was stricken from the files, and judgment against Bear, as garnishee and the debtor of Eleanor Adams, was rendered, for the above sum of one hundred and eleven, dollars and sixty-nine cents.

From this judgment Bear prosecutes this writ of error.

Mr. B. F. Smith, for the Plaintiff in Error.

Mr. F. S. Murphy, for the Defendant in Error.

Mr. Justice Breese

delivered the opinion of the Court:

We are of opinion that process against a garnishee, in aid of a suit at law, wherein an execution has been returned “ nulla Iona," is not original process, and therefore, under the excise law, was not required to be stamped. Mich. Central R. R. v. Keohane, 31 Ill. 147.

Upon the other point, dismissing the interpleader of Susan-nah Adams, we see no error. Her claim is not embraced in the act of eighteen hundred and sixty-one, to protect married women in their separate property. That act applies only to property real and personal, and the rents, issues, increase and profits thereof, but not to her earnings—they belong to the husband, and he alone is entitled to them. Sess. Laws, 1861, p. 143.

Perceiving no error in the record, the judgment must be affirmed.

Judgment affirmed.