Bradley v. Coolbaugh

• Citation: 1878 WL 10245,91 Ill. 148
• Parties: TIMOTHY M. BRADLEY, use, etc.v.WILLIAM F. COOLBAUGH et al.
• Decision Date: 30 September 1878
• Court: Supreme Court of Illinois

91 Ill. 148

1878 WL 10245 (Ill.)

TIMOTHY M. BRADLEY, use, etc.

v.WILLIAM F. COOLBAUGH et al.

Supreme Court of Illinois.

September Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.

This was an action of trespass, by Timothy M. Bradley as sheriff of Cook county, for the use of John H. Mortimer and Charles S. Debost, against the appellees. The property was taken from the possession of the sheriff by the defendants and sold. The material facts appear in the opinion.

Messrs. BECKER & DALE, for the appellant.

Mr. MELVILLE W. FULLER, for the appellees.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

On the 23d day of January, 1874, Mortimer and Debost, claiming to be creditors of William Kurka, sued out of the Superior Court a writ of attachment against his effects, on the ground the debtor had departed from the State. The writ was placed in the hands of the sheriff and was by him levied on a stock of goods that it was said belonged to the attachment debtor. When the goods were seized the officer acting placed them in the hands of Le Gros as custodian, to be by him held for the sheriff. On the 7th day of February, 1874, Swinburn, who was an acting constable, levied upon the same goods while in possession of the sheriff's custodian, by virtue of a distress warrant issued by Coolbaugh, Powers and Wheeler against William Kurka and E. A. Le Gros, and also by virtue of a writ of attachment in favor of John McIntire against the same defendants, and took the goods into his own possession, and such proceedings were afterwards had that the goods were sold to satisfy the amounts due plaintiffs in the distress and attachment proceedings against Kurka and Le Gros. Although Mortimer and Debost obtained judgment against William Kurka in the attachment case for the sum due them, no portion of the goods seized under the writ in their favor was ever applied in discharge of the same, nor were any of the proceeds of the sales of the goods appropriated for that purpose.

This action was brought in trespass, in the name of Timothy M. Bradley for the use of Mortimer and Debost, against William F. Coolbaugh, H. G. Powers, C. T. Wheeler, John Morris, John McIntire and William Swinburn, to recover the value of the interest the beneficial plaintiffs had acquired in the goods under their attachment.

In obedience to a rule laid upon the nominal and beneficial plaintiffs and their attorneys, the latter produced in court an agreement entered into between Mortimer and Debost, Ellis and Harrup, and E. A. Le Gros, all of whom were creditors of the attachment debtor. That agreement recited that the parties thereto were creditors of the absconding debtor, stating the amounts due each respectively, and that there were other small creditors for wages and rent, and then provided that Mortimer and Debost should commence an attachment suit against Kurka in the Superior Court, procure Le Gros to be appointed custodian of the goods levied upon, and at the sheriff's sale he should become the purchaser of the whole stock at a certain price and pay for the same with his notes at two and four months, with security, for a sum agreed upon, for the use of the other parties to the agreement. It seems to have been contemplated other creditors might institute legal proceedings against the property of Kurka, and in that event a pro rata rebate was to be made from the amount of the notes to be given by Le Gros. On the production of the agreement defendants gave it in evidence and it was read to the jury.

The case was three times tried in the lower court. On the first and second trials the jury found for plaintiff and assessed his damages. Both verdicts were set aside on motion of defendants. Before the cause was submitted on the third trial McIntire and Swinburn were dismissed out of the case and the suit thereafter proceeded against the other defendants. On the last trial, under instructions from the court to do so, the jury found defendants not guilty. The motion made by plaintiff for a new trial was by the court overruled, exceptions taken and plaintiff brings the case to this court on appeal.

Our understanding is, the case was defended in the court below on two grounds: First, that the goods levied upon by the attachment writ were the property of Le Gros and Kurka, partners, and the surrender of the goods...