Capes v. Burgess

• Decision Date: 01 November 1890
• Citation: 25 N.E. 1000,135 Ill. 61
• Parties: CAPES v. BURGESS et al.
• Court: Illinois Supreme Court

135 Ill. 61

25 N.E. 1000

CAPES

v.BURGESS et al.¹

Supreme Court of Illinois.

Nov. 1, 1890.

Error to appellate court, third district.

Kerrick, Lucas & Spencer, for plaintiff in error.

Ed wards & Evans, for defendants in error.

BAILEY, J.

Haynes, Gordon & Co., having obtained judgment in the circuit court of McLean county against Charles Capes for $2,050, and costs, and having had execution issued thereon and returned unsatisfied, sued out a writ of garnishment, and caused Robert Burgess and Charles Burgess, copartners doing business under the firm name of Burgess Bros., to be summoned as garnishees. Said garnishees, by their answer, denied having in their possession, custody, or charge, any lands, goods, chattels, moneys, choses in action, credits, or effects of said Capes, or being in any was indebted to him, but admitted, in answer to specific interrogatories in that behalf, that on or about the 8th day of March, 1886, they sold and delivered to said Capes the imported stallion Pride of Maplethorp, with a statement or warranty as to his qualities, said statement of warranty being as follows: ‘Bill of sale of Pride of Maplethorp. This is to certify that we have sold the imported shire stallion, Pride of Maplethorp, to Mr. C. T. Capes of Pontiac, Ill. This also certifies that the above-mentioned stallion, Pride of Maplethorp, was imported from England on the steam-ship Lake Huron, by the Burgess Bros., of Wenona, Ill. This also certifies that the above-mentioned stallion is free from all hereditary diseases, and is a breeder; and in case said stallion proves contrary in a reasonable time, say two years, if no mishap befall him, we agree to take said stallion back and furnish the buyer another stallion of the same value as the above stallion, provided that the said stallion, Pride of Maplethorp, is returned to us in good condition. BURGESS BROS., Wenona, Ill. Dated Wenona, March 8, 1886.’ Said garnishees further answered, denying that there had been any breach of said warranty, or that said stallion had proved contrary thereto, and denying that said Capes had offered to return said stallion to them in good order. The judgment creditors thereupon filed their replication, alleging that said garnishees had not truly discovered the moneys, choses in action, credits, and effects of said Capes in their hands, custody, and charge, or due or owing from them to him; and the issue thus formed being tried by a jury, a verdict was rendered finding the issues in favor of the plaintiff, Capes, and assessing his damages at $1,375. In answer to questions of fact submitted to them for a special finding, the jury also found that said stallion, at the time of his sale to said Capes by said garnishees, was not a fair average breeder; that, if he had been so, his reasonable value would have been $1,600, but, that not being a fair average breeder, his value was actually only $225. The court thereupon, after denying the garnishees' motion for a new trial, gave judgment in favor of said Capes, for the use of said Haynes, Gordon & Co., against said garnishees, for said sum of $1,375, and costs. Said judgment was taken by said garnishees to the appellate court by appeal, and was there reversed, no order being entered remanding the cause to the circuit court for a new trial. The judgment of the appellate court is now brought to this court by writ of error.

The appellate court having reversed the judgment without remanding the cause, and without reciting in its final order any finding as to facts, it must be presumed that its judgment was not the result, in whole or in part, of any finding of the facts different from the finding of the trial court. Coalfield Co. v. Peck, 89 Ill. 139;Thomas v. Insurance Co., 108 Ill. 91. We must assume, therefore, that the appellate court found all the facts as they were found by the jury, but reversed the judgment solely for errors of law appearing in the record. The judgment of the appellate court being conclusive as to facts, the only question which can arise here is whether the facts as alleged by the judgment creditors and as found by the verdict are sufficient to sustain a judgment against the garnishees. The only issues raised by the pleadings upon which any evidence was offered were as to whether the warranties upon which the stallion in question was sold by Burgess Bros, to Capes had been broken, and as to the amount of damages sustained by Capes by reason of such breach of warranty. The verdict of the jury has conclusively established the fact, so far as this record is concerned, that said warranties have been broken in manner and form as charged, and that Capes is entitled to recover the sum of $1,375 as his damages for such breaches. The question remains, however, whether the judgment creditors of Capes can, by process of garnishment, litigate said claim for unliquidated damages, and subject it to the payment of their judgment, and that is a question of law which is open for review in this court. The appellate court decided this question in the negative, and, after maturely considering the arguments of counsel submitted here, we are disposed to concur in the conclusion reached by that court.

The remedy by garnishment is statutory, and the question of its application to any given case or class of cases is therefore purely a matter of statutory regulation. In other states, whenever the question has arisen, the courts, basing their decisions of course upon the peculiar provisions of their own statutes, have held that a person whose liability to the principal debtor was for unliquidated damages could not be charged as garnishee. The rule is accordingly laid down by the leading text-writers on the subject of garnishment that in no case where the claim of the defendant against the garnishee rests in unliquidated damages can the garnishee be made liable. Drake, Attachm. § 548; 2 Wade, Attachm. § 447; Wap. Attachm. 197, and authorities cited in notes. We are aware of no inherent obstacle in the way of such legi...