Hanchett v. Waterbury

• Court: Illinois Supreme Court
• Writing for the Court: MULKEY
• Citation: Hanchett v. Waterbury, 115 Ill. 220, 32 N. E. 194 (Ill. 1885)
• Decision Date: 24 March 1885
• Parties: HANCHETT v. WATERBURY.

115 Ill. 220

32 N.E. 194

HANCHETT

v.WATERBURY.¹

Supreme Court of Illinois.

March 24, 1885.²

Appeal from appellate court, first district.

Injunction by D. W. Waterbury against Seth F. Hanchett. Injunction allowed, and defendant appeals. Affirmed.

Dickey and Sheldon, JJ., dissenting.

Horton, Hoyne & Saunders, for appellant.

G. W. & J. T. Kretzinger, for appellee.

MULKEY, J.

In December, 1883, Ingram, Kitchen & Williams made a voluntary assignment to D. M. Waterbury, the appellee, for the benefit of creditors. Vietor & Achelis, claiming to be the owners of certain articles of property embraced in the assignment, and then in the possession of Waterbury as assignee, sued out of the circuit court of Cook county a writ of replevin for the recovery thereof, and placed it in the hands of Seth F. Hanchett, as sheriff, for execution. The county court, on the petition of the assignee, thereupon entered an ex parte order, enjoining and restraining the sheriff from executing the writ of replevin. On the same day the sheriff appeared in the county court, and filed a writte motion to set aside the restraining order, which the court, upon due consideration, declined to do, and thereupon entered a formal order overruling said motion. From this last order the sheriff prosecuted an appeal to the circuit court, where the same was reversed, and the original restraining order set aside. On appeal to the appellate court for the first district the order of reversal in the circuit court was in turn reversed and set aside by the appellate court, and the case is now before us on appeal from the latter court.

No question is made as to the validity of the deed of assignment, or the regularity of any of the proceedings under it, prior to the filing of the petition and entry of the restraining order complained of. We are therefore warranted in assuming there has been, on the part of all concerned, a substantial compliance with the provisions of the statute relating to such assignments.

From this statement of the facts it is manifest the main question presented for determination is whether the county court had power to make the restraining order complained of; for, assuming the power of the court to exist, the propriety of exercising it will not be, and, indeed, is not, questioned. Whether the court had such power or not depends upon the construction which must be given to the act of May 22, 1877, entitled ‘An act concerning voluntary assignments, and conferring jurisdiction therein upon county courts.’ The position of appellant is that the power to make an assignment for the benefit of creditors is not conferred by the act in question; that the right was an existing one prior to its adoption, and is not in any way affected by it; that ‘the title, power, and authority of the assignor are full and complete, independent of the county court and of the statute.’ This view we regard as far from being accurate. It is true that the right and power of a failing debtor to pass the title of his effects to an assignee remain as they did before the statute, but this is all. The power to control the distribution and beneficial enjoyment of his property upon such a transfer of the title is essentially different from what it was before the statute. Prior to its adoption, the insolvent debtor could distribute his property among his creditors just as he pleased. If there was not sufficient to pay all, he might direct the whole of one's claim be paid, and only half of another's, or he might prefer the claim of a single creditor to the exclusion of all the others, and the assignee would be bound to carry out his directions. Then the county court had nothing whatever to do with the assignee, or the effects in his hands as such assignee. Such is not the case now. The statute has wrought a radical change in the law in these and other respects. All voluntary assignments for the benefit of creditors now stand on the same footing. The effects of the assignor must in all cases be distributed ratably among his creditors, and any provisions in the deed of assignment directing otherwise will be inoperative and void.

By the first section of the act in question every debtor making an assignment for the benefit of his creditors is requiredto make out and annex to such assignment an inventory, under oath or affirmation, of his estate, both real and personal, together with a list of his creditors, showing their residence and place of business, if known, and the amount of their respective demands; and the assignment, with the annexed schedules thus made out, is required to be acknowledged and recorded, as in said section provided. By the second section the assignee is required to give immediate notice, in the manner therein provided, to the creditors to present their claims to him, under oath or affirmation, within three months thereafter. By the third section the assignee is also required to file with the clerk of the county court where such assignment shall be recorded a true and full inventory and valuation of the estate, verified by oath or affirmation, and he is thereupon required to enter into bond to the people of the state, for the use of the creditors, in double the amount of the inventory and valuation, conditioned that he will faithfully discharge his duties as such assignee. After the expiration of three months from date of notice, the assignee is required, by the fourth section, to make an additional report, under oath, showing the number of creditors who have presented their claims for adjustment, and the amount of their respective claims, etc. The fifth section authorizes any person interested, as creditor or otherwise, to appear before the county court, and contest the claims of any of the creditors; and the court is authorized, upon due notice, ‘to proceed to hear the proofs...