Pollack v. Slack, 92 Ill. 221 (1879)

June 1879 · Illinois Supreme Court

92 Ill. 221

William A. Pollack v. John B. Slack et al.

1. Attachments—division of proceeds of sale, as between several judgments. Section thirty-seven of the Attachment act, (Rev. Stat. 1874, 158,) seems to provide for a division of the proceeds of sale of property attached, in two classes of cases: First, where two or more creditors commence by attachment and the writs are all returnable to the same term, they are protected by the statute, whether they all obtain judgments at the same or at different terms of court. Second, all judgments in suits commenced by summons, capias or attachment, rendered at the term when the attachment is returnable, or rendered at the term when judgment is obtained in the suit by attachment, regardless of the time when the actions were commenced.

2. An attachment was sued out and levied upon land of the debtor. At the return term the cause was continued. Subsequently the debtor conveyed the land attached to a third person. After this conveyance the grantee of such debtor and another each brought suit against him, and at the term of court next following both obtained judgments, and at the same term the attaching creditor also obtained judgment. Executions were issued on all these judgments on the same day and placed in the hands of an officer, who advertised and sold the land on the execution in favor of the attaching creditor. The proceeds of this sale were ordered by the court below to be distributed as follows: Eirst, to pay in full the judgment of the attaching creditor, second, the surplus, if any, to the one mentioned as the grantee of the debtor, upon his judgment. This was held to be an improper distribution of the proceeds of the sale. All the judgments were entitled to share pro rata according to their several amounts. The'judgments obtained in the suits which were commenced by summons came within the second class of cases provided for in the statute.

Appeal from the Circuit Court of Washington county; the Hon. Amos Watts, Judge, presiding.

Mr. L. M. Phillips, for the appellant.

Mr. Justice Craig

delivered the opinion of the Court:

John B. Slack sued out an attachment against Charles P. Huntington, returnable to the September term, 1875, of the circuit court of Washington county. On the 20th day of September, 1875, the writ of attachment was levied on a tract of land in Washington county. At the September term of court no trial was had, but the cause was continued. On the 2d day of December, Huntington conveyed the land to Alexander Warner, and the deed was recorded on the 7th day of the following January. Afterwards, Alexander Warner and William Ai Pollack each commenced an action of assumpsit against Huntington, and at the April term of court, 1876, judgments were rendered in their favor, and at the same term the attaching creditor, Slack, obtained a judgment in the attachment suit. On the 11th day of July, 1876, executions were issued on all three of the judgments and delivered to the sheriff, who advertised and sold the land on the execution in favor of Slack. The sheriff reported the money to the court, and an order was entered requiring him to pay, first, John B. Slack the amount of his judgment, and the surplus, if any, to Alexander Warner on his judgment. This decision is assigned for error.

We see no ground upon which the decision can be sustained without disregarding a plain provision of the statute, which declares all judgments in attachments against the same defendant returnable at the same term of court, 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 shall be recovered is rendered, shall share pro rata, according to the .amounts of the several judgments, in the proceeds of the property either in the hands of a garnishee or otherwise. Bev. Stat. 1874, sec. 37, p. 158. This section of the statute seems to provide for a division of the proceeds of the property attached in two classes of cases: First, where two or more creditors commence by attachment, and all returnable to the same term, they are protected by the statute whether they all obtain judgments at the same or at different terms of court. Second, all judgments in suits by summons, capias or attachment, rendered at the term when the attachment is returnable, or rendered at the term when judgment is obtained in the action of attachment regardless of the time when the actions were commenced.

The judgments obtained by Warner and Pollack seem to fall in this second class. Their suits were not commenced until the return day of the attachment had passed, but they each obtained judgment at the same term of court that the attaching creditor obtained his judgment, and they were, under the statute, clearly entitled to share in the proceeds of the * property attached.

The judgment of the circuit court will be reversed and the cause remanded.

Judgment reversed.