Brewster v. Riley

• Decision Date: 31 March 1886
• Citation: 19 Ill.App. 581,19 Bradw. 581
• Parties: GEORGE H. BREWSTERv.EUGENE RILEY ET AL.
• Court: United States Appellate Court of Illinois

19 Ill.App. 581

19 Bradw. 581

GEORGE H. BREWSTER

v.EUGENE RILEY ET AL.

Appellate Court of Illinois, First District.

March Term, 1886.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. ELLIOTT ANTHONY, Judge, presiding. Opinion filed June 9, 1886.

Tolman sued out of the superior court, March 21, 1885, a writ of attachment against the estate of Eugene Riley, returnable to the April term, 1885, of said court, and caused it to be levied upon the goods of Riley on said March 21st. At the said April term Tolman recovered judgment in the suit for $565, and special execution was awarded. On said 21st of March Brewster sued out of the same court an attachment against said Riley, returnable to said April term, which he caused to be levied on the same goods of Riley on said 21st of March, but subsequent to the levy of Tolman's writ. At said April term, Brewster had judgment in his suit for $362.70, and special execution was awarded.

At the March term, 1885, of said court, and March 23, 1885, a judgment by confession, without summons or capias, was entered against said Riley, upon his judgment note of that date, in favor of Rose Riley, for $1,940, and an execution upon it was levied upon said goods March 23, 1885, subsequently to the levy of both said attachments. March 26, 1885, Barm began an action of assumpsit against said Riley, in said superior court, and on the same day sued out, and caused to be levied on the same goods, an attachment in aid returnable to said April term; at which term said Barm recovered in said suit a judgment against said Riley for $704.75, on which a special execution was awarded.

The property so levied upon, consisting of a stock of dry goods, was sold by the sheriff under the execution in favor of Tolman, and realized, above all costs and expenses, the sum of $1,293.90, which was paid into court.

Upon a motion on behalf of said Brewster, at the February term, 1886, of said court, all the parties in interest being present, the above facts being stipulated, the court was asked to make distribution of the said money among the several judgment creditors pursuant to law. Upon the hearing of that motion said Barm offered to prove that the said judgment in favor of said Rose Riley was not based upon a bond fide claim, and that the same was fraudulent. But the court refused to hear evidence upon that question. To which ruling said Barm and said Brewster duly excepted. The court adjudged and ordered that said sum of $1,293.90 be distributed among the said Tolman, Brewster, Rose Riley and Barm, pro rata, in proportion to the amounts of their said respective judgments against said Eugene Riley. To which order the said Tolman, Brewster and Barm duly excepted, and bring the case here for revision.

Messrs. H. S. & F. S. OSBORNE, for appellant; cited Rucker v. Fuller, 11 Ill. 223; Pollock v. Slack, 92 Ill. 221.

Mr. R. W. CLIFFORD, for appellee; that the Attachment Act should be liberally construed, cited Hannibal & St. J. R. R. Co. v. Crane, 102 Ill. 249.MCALLISTER, J.

The first question is whether the ruling of the court was correct in excluding the offer on the part of Barm to prove that the judgment in favor of Rose Riley, entered upon confession, was not based upon a bona fide claim, but was fraudulent. Section 39 of the Attachment Act says: “The court may, at...