Pine Tree Lumber Co. v. Cent. Stock & Grain Exch

• Decision Date: 19 February 1909
• Citation: 238 Ill. 449,87 N.E. 539
• Court: Illinois Supreme Court
• Parties: PINE TREE LUMBER CO. v. CENTRAL STOCK & GRAIN EXCHANGE et al.

238 Ill. 449

87 N.E. 539

PINE TREE LUMBER CO.

v.CENTRAL STOCK & GRAIN EXCHANGE et al.

Supreme Court of Illinois.

Feb. 19, 1909.

Appeal from Appellate Court, First District, on Error to Circuit Court, Cook County; R. W. Clifford, Judge.

Action by the Pine Tree Lumber Company against A. E. Stichtenoth, defendant, and the Central Stock & Grain Exchange, garnishee. A judgment for plaintiff was affirmed by the Appellate Court (140 Ill. App. 462), and the garnishee appeals. Affirmed.Jacob J. Kern, John A. Brown, and O'Bryan & Marshall, for appellant.

Fred H. Atwood, Frank B. Pease, and Charles O. Loucks, for appellee.

VICKERS, J.

The Pine Tree Lumber Company commenced an action of assumpsit in the circuit court of Cook county against A. E. Stichtenoth, laying its damages in the declaration at $3,000. The declaration was upon three promissory notes and an open book account. On the same day the suit in assumpsit was commenced the plaintiff filed an affidavit for an attachment in aid of the suit at law, claiming the sum of $2,804.89 as the amount due. The ground of the attachment was the nonresidence of Stichtenoth. The Central Stock & Grain Exchange was served as a garnishee. Interrogatories were filed, to which the garnishee made answer. Service by publication was had upon Stichtenoth, and a default duly entered against her. No further steps appear to have been taken in the case until 1905, when the Pine Tree Lumber Company filed a traverse to the answer of the garnishee. Afterwards, on July 7, 1905, the case was regularly called for trial, and was tried by a jury. No one appeared at the trial, either for the defendant in the assumpsit case, or the garnishee. Before the trial was entered upon plaintiff amended the ad damnum, changing it from $3,000 to $4,000, to cover accrued interest. The jury assessed plaintiff's damage in the assumpsit case at $3,586.39, and found the issues on the answer of the garnishee for the plaintiff, and found that at the time of the service of the garnishee summons on the Central Stock & Grain Exchange there was due and owing from the garnishee to the defendant the sum of $11,714.27. The court rendered judgment upon this verdict against the garnishee, in favor of the defendant, for the use of the plaintiff, for $3,586.39. The garnishee sued out a writ of error from the Appellate Court for the First district, and that court affirmed the judgment of the circuit court. This is an appeal by the garnishee from the judgment of affirmance by the Appellate Court.

No bill of exceptions appears in the record. The trial in the circuit court was ex parte. There are therefore no exceptions to any of the rulings of the court below.

Proceedings of this character involve three parties: The plaintiff and defendant in the original suit, whose interests are necessarily antagonistic, and the garnishee, who is, theoretically at least, a disinterested stakeholder between the contestants, and who only becomes involved in the litigation as he may deny his indebtedness to the defendant, or deny having any of the property of the defendant in his possession, or make default in failing to answer to the notice. If the garnishee is not indebted to the defendant, and has no property or effects of the defendant in his hands, he is entitled to be discharged upon showing these facts, without costs. If he owes the defendant, or has property or effects belonging to him in his hands, it is a matter of indifference to him whether he pays the money or delivers the property to the defendant or to the plaintiff in the case, provided he is properly protected in making such payment or delivery. It is not required of the garnishee that he should make a defense for the defendant, neither should he collude with the plaintiff for the purpose of giving plaintiff any advantage of the defendant. If a judgment is obtained against the defendant, it is no concern of the garnishee that irregularities have intervened which the defendant may be willing to waive, or fail or neglect to take advantage of. It is only those grave departures from the course of proceedings prescribed by the statute which are fatal to the judgment that concern the garnishee, since the payment under a void judgment will not protect the garnishee against the original liability. 2 Wade on Attachments, § 326. The only question, therefore, to be determined upon this record is, Did the circuit court have jurisdiction to render the judgment against Stichtenoth?

Appellant's first contention is that the court did not have jurisdiction of the person of Stichtenoth by reason of certain supposed defects in the service by publication. No objection is made to the affidavit of nonresidence. The notice published, omitting the title of the cause, and other formal matters which are not questioned, is as follows: ‘Public notice is hereby given to the said A. E. Stichtenoth that a writ of attachment in aid of a suit of law heretofore commenced by summons and still pending, issued out of the office of the clerk of the circuit court of Cook county, dated the 28th day of December, A. D. 1899, at the suit of the said Pine Tree Lumber Company, a corporation, and against the lands, goods, chattels, rights, moneys, credits and effects of the said A. E. Stichtenoth, for the sum of twenty-eight hundred and four ($2,804) dollars and eighty-nine (89) cents, directed to the sheriff of Cook county to execute, and which writ has been duly returned by said sheriff executed by levying on property described and more fully set forth in said return. Now, therefore, unless you, the said A. E. Stichtenoth, shall personally be and appear before the said circuit court of Cook county on or before the first day of the next February term thereof, to be holden at the courthouse in the city of Chicago on the third Monday of February, A. D. 1900, give special bail and plead to the said plaintiff's action, judgment will be entered against you and in favor of the said Pine Tree Lumber Company, and so much of the lands,...