Pearce v. Rhawn

• Decision Date: 31 October 1883
• Citation: 13 Ill.App. 637,13 Bradw. 637
• Parties: THOMAS A. PEARCE ET AL.v.WILLIAM H. RHAWN ET AL.
• Court: United States Appellate Court of Illinois

13 Ill.App. 637

13 Bradw. 637

THOMAS A. PEARCE ET AL.

v.WILLIAM H. RHAWN ET AL.

Appellate Court of Illinois, First District.

October Term, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. ROLLIN S. WILLIAMSON, Judge, presiding. Opinion filed November 16, 1883.

Messrs. FLOWER, REMY & GREGORY, for appellants; that the interpleader is bad in not setting up the Pennsylvania statute under which appellees claim, cited Rorer on Inter- State Law, 118; Walker v. Maxwell, 1 Mass. 104; Holmes v. Broughton, 10 Wend. 75; Carey v. C. & C. R'y Co. 5 Ia. 357-364; Palmer v. Marshall, 60 Ill. 289; Wheeler v. Raymond, 8 Cowen, 311.

As to whether the statutes of Pennsylvania can, in this State, have force as against a citizen of that State who has invoked the aid of our courts for the collection of his debt: Booth v. Clark, 17 How. 322; Willitts v. Waite, 25 N. Y. 577; Hoyt v. Thompson, 5 N. Y. 320-351; Osgood v. Maguire, 61 N. Y. 524-9; Burrill on Assignments, § 303; Quincy Bridge Co. v. Adams Co. 88 Ill. 615; City Ins. Co. v. Com. Bk. 68 Ill. 348; Gardner v. Com. Nat. Bk. 95 Ill. 298; Taylor v. Geary, Kirby (Conn.), 313; Wallace v. Patterson, 2 Har. & McHen. 463; Harrison v. Sterry, 5 Cranch, 289; Greene v. Van Buskirk, 7 Wall. 139; Mineral Point R. R. Co. v. Barron, 83 Ill. 365; Roche v. Rhode Island Ins. Asso. 2 Bradwell, 360.

Mr. MELVILLE W. FULLER, for appellees; that the creditor's domicile determines the law in a conflict in another State between the creditor's assignee and an attaching creditor, cited Wharton on Conflict of Laws, § 276; Caskie v. Webster, 2 Wall. 131; Smith v. Buchanan, 1 East, 6; Braynard v. Marshall, 8 Pick. 194; Meade v. Dayton, 28 Conn. 33; Clark v. Peat, 35 Conn. 302; Pond v. Cooke, 45 Conn. 132; Speed v. May, 17 Penn. St. 91; Guillander v. Howell, 35 N. Y. 657; Goodwin v. Holbrook, 4 Wend. 377; Keyser v. Rile, 47 Md. 203; Klein v. French, 57 Miss. 662.

An attaching creditor is precluded from contesting the validity of an assignment, good by the law of the State of the domicile of such creditor, which is at the same time the domicile of the debtor: Hall v. Boardman, 14 N. H. 38; Hoag v. Hunt, 21 N. H. 106; Smith v. Brown, 43 N. H. 44; Dunlap v. Brown, 43 N. H. 287; Kidder v. Tufts, 48 N. H. 125; Whipple v. Thayer, 16 Pick. 25; Richardson v. Forepaugh, 7 Gray, 546; May v. Wannemacher, 111 Mass. 202; Atwood v. Ins. Co., 14 Conn. 555; Plestero v. Abraham, 1 Paige, 236; Abraham v. Plestero, 3 Wend. 540; Moore v. Bownell, 2 Vroom (N. J.), 90; Richardson v. Leavitt, 1 La. Ann. R. 430; Einer v. Deynoodt, 39 Mo. 69; Thurston v. Rosenfeld, 42 Mo. 474; Warren v. Van Buskirk, 35 N. Y. 658; Ward v. Morrison, 35 Vt. 593.

The general rule is that an equitable assignment will prevail when the creditor has notice before suit: Drake on Attachment, § 527; Hodson v. McConnel, 12 Ill. 170; Born v. Staaden, 24 Ill. 325.

As to debts, the accepted rule is that their situs is that of the creditor's domicile: Einers v. Best, 32 Mo. 240; Baldwin v. Hale, 1 Wallace, 223; Clay v. Smith, 3 Peters, 44; Receiver v. First Nat. Bk. 34 N. J. E. 454.

BAILEY, J.

On the 17th day of January, 1883, Thomas A. Pearce and Martin Landenberger, Jr., sued out of the Superior Court of Cook county, an attachment against the property of John Landenberger, a resident of the State of Pennsylvania, and caused the firm of J. V. Farwell & Co., of Chicago, to be summoned as garnishees. Judgment was rendered against the defendant, John Landenberger, by default, for $27,500, and the answer of the garnishees disclosing an indebtedness from them to him of $4,259.91, judgment was rendered against them in favor of John Landenberger, for the use of the attaching plaintiffs, for that sum.

Afterward, and at the same term, William H. Rhawn, David B. Cummins and David Faust, claiming as trustees of the estate of John Landenberger, appeared, and on their motion the judgment against the garnishees was vacated and leave was given them to interplead, and they thereupon filed their interpleader alleging, in substance, that at the date of the commencement of the attachment proceedings, and for several years prior thereto, both the attaching creditors and said John Landenberger were, and still are, citizens and residents of the State of Pennsylvania; that on the 4th day of January, 1883, a certain writ of domestic attachment was sued out of the Court of Common Pleas for the county of Philadelphia, in the State of Pennsylvania, by the National Bank of the Republic, a corporation organized under the laws of Congress and located in the city of Philadelphia, against said John Landenberger, and against the plaintiffs in this suit and others as garnishees, and that said writ was duly executed January 6, 1883; that thereupon such proceedings were had, that on the 29th day of January, 1883, said Rhawn, Cummins and Faust were, by the order and judgment of said court, “duly in accordance with the statute of Pennsylvania in that behalf,” appointed trustees of the estate of said John Landenberger, for the benefit of his creditors; that on the 30th day of January, 1883, they duly qualified as such trustees, and thereupon became vested with all the estate of said John Landenberger at the time of issuing said writ of domestic attachment “according to the laws of the State of Pennsylvania,” including all debts and things in action due and belonging to him, at the date of said attachment or afterward, with capacity to sue therefor in their own names; that thereby the money due from the garnishees herein became due to them as trustees and belonged to them and not to John Landenberger, and that as such trustees they were entitled to judgment against the garnishees therefor.

To said interpleader the attaching creditors filed a general demurrer, which being overruled, and said creditors electing to abide by their demurrer, judgment was rendered in favor of said trustees and against said garnishees for said sum of $4,259.91. Said attaching...