Haines v. O'conner
| Decision Date | 31 October 1879 |
| Parties | J. CHARLES HAINESv.DENNIS O'CONNER. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the County Court of Cook county; the Hon. MASON B. LOOMIS, Judge, presiding. Opinion filed March 2, 1880.
Mr. ARNOLD TRIPP, for appellant; that in the absence of fraud or collusion, a subsequent attaching creditor cannot inquire into the regularity of prior attachments, cited Rudolf v. McDonald, 6 Neb.--; Bank of Augusta v. Jancker, 9 La. An. 8; Gibson v. Foster, 2 An. 507; Isham v. Ketchum, 46 Barb. 44; Kincaid v. Neall, 3 McCord, 201; Kreuchi v. Dehler, 50 Ill. 176.
Instructions must be based on the evidence: Alexander v. Mt. Sterling, 71 Ill. 366; Herrick v. Gary, 83 Ill. 85; Bradley v. Parkes, 83 Ill. 169.
The court should on notice of the garnishee have consolidated the several cases: Imp. Fire Ins. Co. v. Gunning, 81 Ill. 236; Gillilan v. Webster, 11 Ill. 511.
Messrs. SCATES, HYNES & DUNNE, for appellee; that the parties suing the defendant in attachment could not be allowed to split their demands so as to come within the jurisdiction of a justice, cited Lucas v. Lecompte, 42 Ill. 303.
An attorney has no power to confess judgment or make a compromise without special authority from his client: Lyon v. Boilvin, 2 Gilm. 629; Wadhams v. Gay, 73 Ill. 415; Sayles v. Mann, 11 Chicago Legal News, 67.
As to jurisdiction: Rev. Stat. 1874, 343, §§ 177, 160, 55.
As to practice in garnishment: Stahl v. Webster, 11 Ill. 511; Warren v. Iscarian Community, 16 Ill. 114; Gillilan v. Nixon, 26 Ill. 50; Farrell v. Pearson, 26 Ill. 463; Rankin v. Simons, 27 Ill. 352; Cariker v. Anderson, 27 Ill. 358; Towner v. George, 53 Ill. 168; Warne v. Kendall, 78 Ill. 598.
This was a suit by attachment, brought in the Cook County Court, by Dennis O'Conner against Machris & Reichendorff, upon an indebtedness from the latter to the former of $608.48, and the appellant, J. Charles Haines was summoned and answered as garnishee. Issues were formed upon his answer, on the trial of which the jury returned a verdict finding that he had $1,615.73 in his hands belonging to Machris & Reichendorff. The court, overruling appellant's motion for new trial, gave judgment on the verdict, and Haines brings the case in this court by appeal.
The record presents various questions, the controlling one being: Had the County Court jurisdiction of a claim on behalf of the defendants in the attachment against the garnishee, amounting to $1,615.73, or exceeding one thousand dollars?
The statute prescribing the jurisdiction of the County Court declares: “The County Courts shall have concurrent jurisdiction with the circuit courts, in all that class of cases wherein justices of the peace now have, or may hereafter have, jurisdiction where the amount claimed, or the value of the property in controversy shall not exceed one thousand dollars.”
Although the defendant in the attachment, the alleged debtor, does not institute the proceedings, and the statute authorizes it to be done by the creditor, yet the law regards it as the case of the defendant in the attachment against the garnishee, in which the latter has the same rights of defense, and is entitled to the same mode of trial as if the defendant in the attachment had brought the suit directly in his own name against the person in this proceeding called the garnishee. The attaching creditor is not a party to the issue. In Warne v. Kendall, 78 Ill. 598, the Supreme Court expressly decided that, in a case like the one under consideration, it was irregular to make up the issue and try it as between the garnishee and the attachment creditor; but that the issue must be made up between the defendant in the attachment and the garnishee. Wherefore, the judgment cannot be rendered in favor of the attaching creditor, but must be in favor of the defendant in the attachment against the garnishee, and then it will stand as a security or fund in which other attaching creditors may participate. Farrell, garnishee, v. Pearson et al. 26 Ill. 463; Rankin v. Simonds, 27 Ill. 352. The garnishee is not properly a defendant in an attachment suit to defend against the claim of the attaching creditor. Carriker v. Anderson, 27 Ill. 358. In Towner v. George, 53 Ill. 168, the court, by Chief Justice BREESE, said: “It may be proper to say that we are surprised that, nothwithstanding the admonitions of this court, and instructions given as to the form of the judgment against garnishees, circuit courts will persist in entering them in an improper form, as this is, being in the name of the...
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