James v. Dexter

• Decision Date: 15 May 1885
• Citation: 113 Ill. 654
• Parties: THOMAS L. JAMESv.S. PARKMAN DEXTER et al.
• Court: Illinois Supreme Court

113 Ill. 654

THOMAS L. JAMES

v.S. PARKMAN DEXTER et al.

Supreme Court of Illinois.

Filed at Ottawa May 15, 1885.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. ELLIOTT ANTHONY, Judge, presiding.

Mr. CHARLES L. EASTON, for the appellant.

Messrs. MOSES & NEWMAN, for the appellees.Mr. JUSTICE SCOTT delivered the opinion of the Court:

It appears from the record in this case, that on the 24th day of September, 1883, the firm of F. Mayer & Co., residing in and doing business in the city of New York, in accordance with the laws of New York, made a deed of assignment of their effects to Simon Danzig, also a resident of that State, for the benefit of their creditors, with a provision for paying certain of them in full. Among their unpreferred creditors were the plaintiffs in this suit, S. P. Dexter & Co., merchants, doing business at the time in the city of New York. On the 10th day of November, 1883, S. P. Dexter & Co. commenced a suit in attachment, in the Superior Court of Cook county, against the firm of F. Mayer & Co., to recover a large sum of money for goods sold and delivered to them, and garnisheed a number of parties residing in Chicago, as debtors to the attachment defendants. It seems that afterwards such proceedings were had, in the proper court in New York, that Simon Danzig, the original assignee, was removed for what was thought to be a proper cause, and Thomas L. James was appointed his successor. Prior to his removal Simon Danzig had interpleaded, and claimed the funds attached as belonging to him, as assignee of F. Mayer & Co., under the assignment that had previously been made to him. Afterwards, on the 12th day of January, 1884, James was substituted in the place of Danzig as interpleading assignee, and filed his amended petition, in which he set up, in addition to the making of the assignment, the proceedings that were instituted by plaintiffs in the courts of New York in reference to the removal of Danzig as assignee. The issues made on the petition of the interpleading claimant were, by agreement of parties, submitted to the court for trial without the intervention of a jury, and the court, after hearing the evidence submitted, found the issues against the interpleader, and refused to direct that the funds attached should be paid to him, and rendered final judgment that plaintiffs in the attachment recover from the garnishees the moneys due from them to the attachment debtors. That decision, or the denial to grant the order asked for by the interpleader, was affirmed, on his appeal, in the Appellate Court for the First District, and he now brings the case to this court on his further appeal.

The principal error assigned in the Appellate Court is, that the Superior Court erred in “finding the issues involved,” in favor of plaintiffs, and against the interpleader. Other errors were assigned, but they all arise or spring from this alleged erroneous finding.

There is one reason why the merits of the case could not be considered in the Appellate Court, nor can it be done in this court. It is, that the bill of exceptions contains no statement or certificate by the judge before whom the cause was tried that it contains all the evidence that was introduced by both parties. It is seen all the allegations of the petition of the intervening claimant “were put at issue, and severally denied” by plaintiffs, and whether the finding as to them was correct or not can not be considered on appeal, unless where the bill of exceptions purports to contain all the...