Bigelow v. Andress

• Citation: 1863 WL 3114,31 Ill. 322
• Parties: JOHN R. BIGELOW et al.v.HENRY W. ANDRESS et al.
• Decision Date: 30 April 1863
• Court: Supreme Court of Illinois

31 Ill. 322

1863 WL 3114 (Ill.)

JOHN R. BIGELOW et al.

v.HENRY W. ANDRESS et al.

Supreme Court of Illinois.

April Term, 1863.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Cook county; the Hon. GEORGE MANIERRE, Judge, presiding.

John R. Bigelow, Charles H. Hayden and Henry W. Bigelow, the plaintiffs in error, exhibited their bill in chancery in the court below, against Henry W. Andress, Charles Andress and Charles W. Earl, in which it was set forth that previously thereto, to wit, on the 5th day of December, 1861, the complainants had caused a writ of attachment to issue out of the said Circuit Court, against the goods and chattels, lands and tenements of the said defendant, Henry W. Andress, which said writ had been served by summoning Charles W. Earl as garnishee of said Henry W. Andress.

That the defendant, Henry W. Andress, was formerly engaged in the paper-hanging business, in the city of Chicago, in this State, and between the 8th day of September, 1859, and the 1st day of May, 1860, purchased goods of the complainants on a credit, and that for such goods so purchased of the complainants, the said Henry W. Andress was, on the first day of December, 1861, indebted to them in about the sum of eight hundred and forty dollars, which sum was due and remained wholly unpaid. That recently, the said Henry W. Andress made a pretended sale or transfer of his stock of goods to his co-defendant and father, who resides in the city of Cincinnati, in the State of Ohio, and that said Charles Andress claimed and pretended to own said stock of goods, and was, by his pretended agent, Charles W. Earl, selling and disposing of them in said city of Chicago, where the goods still remained, the said Henry W. Andress having left Chicago for parts unknown to the complainants.

That the said Charles W. Earl was then in possession of said stock of goods, and engaged in selling and disposing of them, as the agent or clerk of said Charles Andress.

That the defendants, Henry W. Andress and Charles Andress, were, some two years and a half previously, co-partners in said business, in the city of Chicago; that while so engaged in business, they contracted debts, some of which the said Charles Andress claims to have paid, and he pretended that the said stock of goods was transferred to him by his said son, Henry W. Andress, in payment of the amount which he, the said Charles Andress, had, or claimed to have, paid on the said co-partnership indebtedness.

The bill further set forth, that the complainants were remediless in the premises, at and by the direct and strict rules of the common law, and could not have adequate relief, except in a court of equity, and that they could not safely proceed to attach and sell the said goods of said Henry W. Andress, by reason of said pretended transfer, and of the claim of said Charles Andress in and to said goods.

The bill charged, that the pretended sale or transfer of said stock of goods from said Henry W. Andress to Charles Andress, was fraudulent and void as to the complainants and other creditors of said Henry W. Andress, and that it was made for the purpose of hindering and delaying the creditors of said Henry W. Andress in the collection of their debts against him, and of placing said stock of goods beyond the reach of the creditors of said Henry W. Andress, and that a full and adequate consideration was not paid by said Charles Andress to said Henry W. Andress for said stock of goods. It was stated in the bill, that Henry W. Andress then had no property within the State of Illinois, other than the said stock of goods, out of which the complainants could make any portion of their said debt against him.

The prayer of the bill was, that the said pretended sale or transfer of said goods, from Henry W. Andress to Charles Andress might be adjudged and decreed to be fraudulent and void, and that the same might be ordered to be sold to satisfy the amount which should be found to be due and owing to the complainants from said Henry W. Andress, and that the defendants, Henry W. Andress, Charles Andress and Charles W. Earl, might be enjoined and restrained from selling, assigning, transferring, delivering, or in any manner incumbering or disposing of, any of the said goods, so transferred by Henry W. Andress to Charles Andress, or from paying over, or in any manner disposing of, any money, the avails of sales of said goods, until the further order of the court.

And to the end that the defendants might, if they could, show why the complainants should not have the relief sought, certain interrogatories were propounded to the defendants, touching the object of the transfer of the goods from Henry W. Andress to Charles Andress, and in relation to the other facts alleged in the bill.

And finally, the complainants prayed that Henry W. Andress might be, in like manner, prohibited from making any assignment of his property, and from confessing any judgment, for the purpose of giving preference to any other creditor over them, and from doing any other act to enable other creditors to obtain his property; and that a receiver might be appointed, according to the course of practice in the court of chancery, and with the usual powers of receivers in like cases, of all the property, equitable interests, things in action, and effects, of the said Henry W. Andress--and prayed for general relief, and for an injunction.

To this bill the following demurrer was interposed:

And the said Charles Andress and Charles W. Earl, by Scates, McAllister & Jewett, their solicitors, by protestation, not confessing or acknowledging all or any of the matters and things in the said complainant's bill to be true in such manner and form as the same are therein set forth and alleged, do demur thereto, and for cause of demurrer show that the complainants have not, by their said bill, shown such a case as entitles them to any such relief as is thereby prayed, inasmuch as it does not appear thereby that they have ever obtained any judgment at law against the said Henry W. Andress upon the said supposed indebtedness, or that there has ever been any lien obtained or acquired by the issuing of any execution against the said Henry W. Andress; and inasmuch as it also appears thereby, that at the time of filing their said bill of complaint, the said complainants had only sued out an attachment against the estate of said Henry W. Andress, and it does not in any manner appear in and by the said bill of complaint that the complainants have recovered any judgment whatever in the said attachment suit in said bill mentioned.

Wherefore these defendants demand the judgment of this honorable court, whether they shall be compelled to make any further answer to the said bill, or any of the matters or things therein contained, and pray to be hence dismissed, etc.

The demurrer was sustained by the Circuit Court, and the complainants electing to stand by their bill of complaint, the same was dismissed. Thereupon the complainants sued out this writ of error.

Under the assignment of errors, two questions are presented:

First. Whether by commencing a suit by attachment, and the service of garnishee process, the attaching creditor acquires such a lien upon property in the hands of the garnishee, as will authorize a court of equity to interpose by injunction to prevent him from disposing of it, before a judgment and execution are had in the proceeding at law.

Second. Whether, independent of a lien, the court will entertain a bill to preserve the property, until it can be subjected to a sale on legal process, on the ground that the garnishee has acquired all his rights to the property in fraud of the creditors of the defendant in attachment. Messrs. E. S. SMITH, and E. A. STORRS, for the plaintiffs in error.

Upon the first proposition it is contended that from the time of garnishment the effects in the hands of the garnishee are in custodia legis. Brashear v. West, 7 Peters' R. 608; Biggs v. Kouns, 7 Dana, 405. And under the statute, all goods and effects of the debtor in the hands of the garnishee are liable to satisfy the judgment. Rev. Stat. 1845, p. 67, sec. 15.

Then as between the attaching creditor and the garnishee, the former has a lien upon the property of the debtor in the hands of the latter for the satisfaction of his debt. Tappan v. Evans, 11 N. Hamp. R. 311; Kittredge v. Warren, 14 ib. 509; Stone v. Anderson, 6 Foster, 506; Camp v. Bates, 11 Conn. 53; Hunt v. Field, 1 Stockton (N. J.) 36; Falconer v. Freeman, 4 Sand. Ch. 565.

The question was then presented, whether a court of equity would interpose its restraining power to prevent the disposition or transfer of property fraudulently conveyed, and in the hands of a fraudulent vendee, before judgment at law. The case of Wiggins v. Armstrong, 2 Johns. Ch. R. 144, was cited as having been considered opposed to such interference by a court of equity, until a judgment at law had been obtained, and in that case Chancellor KENT cited the cases of Angell v. Draper, 1 Vern. 329; Shirley v. Watts, 3 Atk. 200; Bennett v. Musgrove, 2 Ves. 51; and a case before Lord NOTTINGHAM, cited in Balch v. Wastall, 1 P. Wms. 445, as sustaining his decision.

But there is a distinction between the case of Wiggins v. Armstrong, and the one at bar. That was put upon the ground that the party seeking relief had no lien upon the property; here, the attaching creditor having a lien on the effects in the hands of the garnishee, a court of equity will preserve the property until judgment is obtained. Beck v. Burdett, 1 Paige, 305; Andrews v. Durant, 18 New York, 500; Tappan v. Evans, 11 N. Hamp. 311; Kittredge v. Warren, 14 N. Hamp. 509; Stone v. Anderson, 6 Foster, 506; Dodge v. Griswold, 8 N. Hamp. 425; Camp v. Bates, 11 Conn. 53; Hunt v. Field, 1 Stockton (N. J.) 36; Falconer v. Freeman, 4 Sand. Ch. 565; Lewis v. Dodge, 17 How?? P. Rep. 229; Heyneman v. Dannenberg, 6 Cal. 276; Holt v. Bancroft, 30 Ala. 205; Smith v....