Chittenden v. Rogers

• Decision Date: 30 April 1866
• Citation: 1866 WL 4648,42 Ill. 95
• Parties: SIMEON B. CHITTENDEN et al.v.THOMAS S. ROGERS et al.
• Court: Illinois Supreme Court

42 Ill. 95

1866 WL 4648 (Ill.)

SIMEON B. CHITTENDEN et al.

v.THOMAS S. ROGERS et al.

Supreme Court of Illinois.

April Term, 1866.

WRIT OF ERROR to the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.

The opinion of the court contains a statement of the case. Mr. E. S. SMITH, for the plaintiffs in error.

Messrs. WALKER & DEXTER, for the defendants in error.

Mr. JUSTICE BREESE delivered the opinion of the Court:

Simeon B. Chittenden and company, on the 23d of July, 1861, sued out a writ of attachment from the clerk's office of the Cook Circuit Court, against Rogers and McCormick, upon an indebtedness amounting to two thousand and thirty-four dollars, returnable to the September Term of that Court, which writ was on the day of its date levied by the sheriff upon a quantity of merchandise. The sheriff placed the goods in the care of the official custodian of Cook county, and took his receipt for the property.

On the 2d of August, 1861, Huested and Carll sued out a writ of attachment from the same court, and returnable to the same term, against these same parties, upon an indebtedness of two hundred and ninety-four 6/100 dollars, and on the same day the sheriff levied the writ on the same goods. On the 27th of the same August, Joseph Wild sued out a writ of attachment against the same parties, returnable at the same term, and levied it on the same day on the same property. On the 6th of November, 1861, judgment was rendered for Chittenden and Co., for their debt; on December 16th, for Huested and Carll, for their debt, and also for Joseph Wild's debt; upon all these judgments special executions issued, and were delivered to the sheriff. On the 31st July, 1861, Rogers and McCormick confessed judgments, on which executions issued in favor, respectively, of Belle C. Ramsay, Jane Barrett and W. A. Green, and on the 1st of August, 1861, they confessed a judgment in favor of W. S. Lambert, for seven thousand and fifty dollars. The executions were delivered to the sheriff on the day the judgments were confessed.

In November, 1861, after the execution in favor of Chittenden & Co. had issued, the sheriff advertised the property for sale on all the executions in his hands. At that time, no judgments had been entered in favor of Huested, and Carll and Wild.

On the 6th of December, 1861, the custodian, by order of the sheriff, sold the property attached, for $7,843 51/100. The custodian received in cash $2,771 52/100, out of which he deducted the costs and expenses, amounting to $1,241 66/100. The attorney of Lambert bid off, in Lambert's name, more than $5,000 worth of the property, but paid over no money. The sheriff received only about $1,500 in money, as above. The next day after the sale on the 7th of December, 1861, all the attaching creditors joined in a bill of complaint to the Circuit Court, against Rogers and McCormick, and against all the plaintiffs in the judgments so confessed, and making the sheriff and custodian parties defendant, setting up all the facts in regard to the attachments, and to the judgments by confession, and the sale of the property, and intention of the sheriff to apply the money collected on the attachment executions to the executions on the judgments confessed, and alleging that the plaintiffs in those executions, were attempting to get possession of the property and money to the prejudice of them, the attaching creditors, and in fraud of their rights. The bill also charged that the executions upon these judgments had expired, and had not been levied upon the property; that a pretended levy was indorsed on the executions after they had expired, and ante-dated by the procurement of the defendants, in fraud of complainants' rights.

The prayer of the bill was, that these judgments by confession should be set aside and declared fraudulent and void as against the complainants, and that the proceeds of the sale be applied to the discharge of complainants' claims in full, if sufficient for that purpose, and if not, then, that the proceeds be applied pro rata to satisfy their claims, and that the sheriff and custodian be enjoined from paying the judgments confessed, and for...