King v. Gooding

• Citation: 22 N.E. 533,130 Ill. 102
• Parties: KING v. GOODING.
• Decision Date: 31 October 1889
• Court: Supreme Court of Illinois

130 Ill. 102

22 N.E. 533

KING

v.GOODING.

Supreme Court of Illinois.

Oct. 31, 1889.

Appeal from appellate court, first district.

Creditor's bill by D. W. C. Gooding against Claude B. King, Anna King, and Homer N. Hibbard, in the superior court of Cook county. The superior court dismissed the bill, and the appellate court reversed the decree. Defendant Anna King appeals.

C. H. & C. B. Wood and S. B. King, for appellant.

S. K. Dow, for appellee.

PER CURIAM.

Having duly considered both the oral and printed arguments submitted in this case, and examined the authorities cited in the briefs of counsel, we concur in the conclusion reached by the appellate court, the reasons for which are satisfactorily stated in the following opinion by GARNETT, P. J., of that court:

‘GARNETT, P. J. This is a creditor's bill, filed June 16, 1883, by appellant against Claude B. King, Anna King, his wife, and Homer N. Hibbard, receiver of the Montello Granite Company, based on a judgment recovered at the April term, 1883, of the superior court of Cook county, in favor of appellant, and against said Claude B. King, for $1,076 and costs. Execution was issued, and duly returned unsatisfied. The Montello Granite Company was the style of a copartnership composed of Claude B. King and James H. Anderson. In a suit to wind up the affairs of that firm, the superior court, on the 18th day of October, 1882, appointed H. N. Hibbard receiver of the firm's assets. At the time the bill in this case was filed, the receiver was proceeding with the duties of his office, and was in possession of the partnership effects. The purpose of the creditor's bill was to reach King's interest in the firm's assets, whatever it might appear to be on final adjustment, and other equitable assets for the payment of said judgment. The receiver was made a defendant to the creditor's bill without leave of the superior court. He demurred to the bill, and his demurrer was sustained, October 18, 1883. King and wife answered, admitting the copartnership, and stating, among other things, that Claude B. King had no property, or interest in any, except his interest as copartner in the assets of the Montello Granite Company, in the hands of said receiver. Replication to the answer was filed October 25, 1883. On November 11, 1884, Claude B. King died, leaving his wife surviving. His death was suggested of record May 25, 1885. His wife, having been appointed administratrix of his estate by the probate court of Cook county, filed her answer as administratrix on July 8, 1885, stating the death of her husband; her appointment and qualification as administratrix; that the deceased left no estate except that involved in the litigation with his partner. Anderson; that all of said property is in the custody of the law, in the hands of a receiver; that it was probable that said estate will be insolvent; and that there would not be more property than enough to pay preferred claims. By her supplemental answer, filed March 12, 1888, she states that the whole personal estate of said Claude B. King had been appraised, and the appraisal approved by the probate court of Cook county, at $277; that the estate is insolvent; that her widow's award had been fixed at $1,975, which she claims should be allowed to her out of any funds in the receiver's hands coming to the estate, in preference to the claim of appellant. On the 6th of November, 1885, the receiver was made a party defendant to the bill by leave of the court, and filed his answer, November 17, 1885, alleging, in substance, that he was unable to determine the amount of King's interest in the assets of the Montello Granite Company. Replications were filed to the answers. It appeared on the hearing that the amount in the receiver's hands coming to King's estate is something over $1,500, and that the widow's award had been fixed at $1,975. The court below dismissed the bill for want of equity.

‘The general rule is that the filing of a creditor's bill, and service of process, create a lien on the equitable assets of the judgment debtor. It has been aptly termed and ‘equitable levy.’ Whit, Fraud. Conv. § 68; 2 Wait, Act. & Def. 428; Bank v. Gage, 93 Ill. 172;Lynch v. Johnson, 48 N. Y. 27;Miller v. Sherry, 2 Wall. 237;Adsit v. Butler, 87 N. Y. 585. In the case at bar, no injunction was issued or receiver appointed. Was either necessary to make the ‘equitable levy’ perfect? In Storm v. Waddell, 2 Sandf. Ch. 544, the court (page 582) emphasizes the point that ‘the lien was acquired by the commencement of the suit, and not by the order for a receiver or his appointment.’ And on pages 564, 565, it is said: ‘Without regard to the injunction, the property of the defendant is subjected to the suit, wherever it may be, if the receiver can lay hold of it, or the complainant can reach it by the decree. * * * A receiver is a convenient and important, but not indispensable, part of the proceeding. * * * No voluntary assignment of the debtor can impair the complainant's right, nor any intervening claim of other creditors. 1 speak in this outline of equitable interests and things in action.’ In Roberts v. Railroad Co., 25 Barb. 662, the...