Levinson v. Home Bank & Trust Co.

• Decision Date: 20 December 1929
• Docket Number: No. 19715.,19715.
• Court: Illinois Supreme Court
• Parties: LEVINSON et al. v. HOME BANK & TRUST CO.

337 Ill. 241

169 N.E. 193

LEVINSON et al.

v.HOME BANK & TRUST CO.

No. 19715.

Supreme Court of Illinois.

Dec. 20, 1929.

Error to First Branch, Appellate Court, First District, on Appeal from Municipal Court of Chicago; Alfor M. Eberhardt, Judge.

Action by Morris Fleisher against Albert Levinson and others, defendants, and the Home Bank & Trust Company, garnishee. Judgment in favor of defendants for the use of plaintiff against the garnishee was affirmed by the Appellate Court (251 Ill. App. 523), and the garnishee brings certiorari.

Reversed and remanded.

Cheney & Peterson, of Chicago (Albert Peterson and A. Edmund Peterson, both of Chicago, of counsel), for plaintiff in error.

Aaron Soble, of Chicago, for defendants in error.

SAMUELL, J.

On January 3, 1928, Morris Fleisher obtained a judgment in the municipal court of Chicago against Albert Levinson, Samuel Stein, and Abraham O. Levinson in the amount of $486 and costs. Upon this judgment an execution was issued and returned ‘no part satisfied.’ On March 9, 1928, Fleisher filed his affidavit for garnishee summons directed to the plaintiff in error, the Home Bank & Trust Company, and the summons was served the following day. The answer of the garnishee was, in effect, that it was not, at the time of the service of the garnishee summons or at any time since said date, indebted to the defendants in any sum or sums whatsoever. On July 27, 1928, the cause came on for trial on a contest of the garnishee's answer. The plaintiff in error had on deposit to the credit of Samuel Stein at 8:30 a. m. on March 10, 1928 ( the time the garnishment summons was served), the sum of $448.77. Plaintiff in error offered to show that it held a note of Stein in the sum of $500, not due until some time after March 10, 1928, and that on March 10, 1928, it charged off this deposit to the credit of the note. leaving an indebtedness due to the bank from Stein in the sum of $51.23. The offer was objected to on the ground that it was incompetent, irrelevant, immaterial, vague, and indefinite. The objection was sustained, and, upon motion of Fleisher, judgment was entered in favor of defendants, for the use of Fleisher, against plaintiff in error, in the sum of $448.77. On appeal to the Appellate Court the judgment was affirmed. 251 Ill. App. 523. The case comes here on certiorari to the Appellate Court.

The principal question involved in this case is whether or not section 13 of the Garnishment Act (Smith-Hurd Rev. St. 1929, c. 62) gives to a garnishee the right to set off or deduct a demand against the judgment debtor which demand is not due at the time of the service of the garnishment summons.

It has been uniformly held by this court that the garnishment process is purely a creature of statute. Siegel, Cooper & Co. v. Schueck, 167 Ill. 522, 47 N. E. 855,59 Am. St. Rep. 309. Therefore, in order to determine the extent and scope of such process, it is necessary to resort to the statute which creates it. Section 13 of the Garnishment Act provides as follows: ‘Every garnishee shall be allowed to retain or deduct out of the property, effects or credits in his hands all demands against the plaintiff, and all demands against the defendant, of which he could have availed himself if he had not been summoned as garnishee, whether the same are at the time due or not, and whether by way of setoff on a trial, or by the set-off of judgments or executions between himself and the plaintiff and defendant severally, and he shall be liable for the balance only after all mutual demands between himself and plaintiff and defendant are adjusted, not including unliquidated damages for wrongs and injuries: Provided, that the verdict or finding, as well as the record of the judgment, shall show in all cases, against which party, and the amount thereof, any set-off shall be allowed, if any such shall be allowed.’

It is a well-settled rule of statutory interpretation that, where the language used is plain and certain, it must be given effect by the courts. The province of the courts is not to legislate but to interpret. We cannot read out of the statute words which the Legislature has placed therein, any more than we can read into the statute words which are not within the manifest intention of the Legislature as determined by the statute itself. Downs v. Curry, 296 Ill. 277, 129 N. E. 761;Sup v. Cervenka, 331 Ill. 459, 163 N. E. 396. In the section of the Garnishment Act above quoted, the Legislature has used the words, ‘whether the same are at the time due or not.’ This phrase was obviously intended to have some meaning, and it cannot be disregarded or treated as a nullity. It is clear and unambiguous. It states definitely and clearly that a garnishee shall be allowed to deduct...