Plume-Atwood Manuf'g Co. v. Caldwell

• Decision Date: 22 January 1891
• Citation: 136 Ill. 163,26 N.E. 599
• Parties: PLUME-ATWOOD MANUF'G CO. et al. v. CALDWELL et al.
• Court: Illinois Supreme Court

136 Ill. 163

26 N.E. 599

PLUME-ATWOOD MANUF'G CO. et al.

v.CALDWELL et al.¹

Supreme Court of Illinois.

Jan. 22, 1891.

Appeal from appellate court, first district.

MAGRUDER and BAKER, JJ., dissenting.

C. M. Hardy, for appellants.

Kraus, Mayer & Stein and Howard Henderson, for appellees.

Flower, Smith & Musgrave, for Commercial National Bank.

SHOPE, J.

This is a contest between creditors of George Bohner & Co., an insolvent corporation of the city of Chicago, of which the appellee Caldwell was appointed assignee. The voluntary assignment of the corporation was consummated by the delivery of the deed of assignment and placing the same of record, after the levy of an execution in favor of the Commercial NationalBank, and of three writs of attachment in favor of the appellants' creditors severally. When the assignee sought to reduce the assigned property to possession, he found the sheriff in custody under said execution and writs of attachment, who claimed the right to hold the same subject only to the order of the court from which his writs were issued. This, in effect, left nothing upon which the deed of assignment could operate, except the residue after discharging these liens, if they were valid liens upon the property. If, however, they did not create valid liens, the assignee might, under the order and direction of the county court, institute proceedings in the proper forum for the recovery of the property included in the assignment. Davis v. Dock Co., 129 Ill. 180, 21 N. E. Rep. 830. The county court, however, had no power or authority to interfere with the custody of the sheriff, acquired through executions and attachments issued from the circuit court, except by consent of the several plaintiffs in said execution and attachments. It is familiar that where two or more courts have concurrent jurisdiction of the same subject-matter the court first acquiring it by service of process will retain the same to the exclusion of the other. Without consent the county court had no jurisdiction over the property, for the reason that it had first been levied upon and attached by the process of the circuit court. A voluntary assignment by an insolvent debtor, after a valid levy of an execution or writ of attachment on all his personal property, and while the sheriff has the same in his custody, necessarily fails to confer jurisdiction over such property upon the county court; nor will that court have power to interfere with the execution of process of other courts of competent jurisdiction in respect to property not in the custody of the assignee or within the administrative control of the county court. It has been repeatedly held that, to invest that court with jurisdiction over property of the assignor, the assignee must reduce the property to his possession. When this is done the property passes within the administrative control of the county court, and it will have ample power to determine and adjust any and all liens and claims and all conflicting rights or interests therein. Preston v. Spaulding, 120 Ill. 208, 10 N. E. Rep. 903; Davis v. Dock Co., supra. In such case the possession of the assignee is that of the county court, and third persons claiming adversely must submit to the jurisdiction of that court.

Appellants deny the jurisdiction of the county court to pass judgment upon the validity of the liens created by the levy of their attachments. They insist that the circuit court alone had jurisdiction over the attached property, and could alone ascertain and declare their rights in respect of the same. This point might be conceded if the parties in interest had not by consent invested the assignee with the possession of the attached property, and thus clothed the county court with exclusive jurisdiction in respect thereof, and in respect of all claims thereon. The only defect in the jurisdiction of the county court was the want of possession by the assignee, and, when that defect was supplied by the voluntary consent of appellants that the property should pass to the assignee, subject to their claims, the county court was clothed with full authority to settle all conflicting claims, including questions of priority, that might arise in respect of such property. It was entirely competent for the parties to consent, as they did, to the order of the county court directing the sheriff to turn over possession of the property to the assignee. The ruling giving exclusive jurisdiction to the court first acquiring it is one that the parties may waive; and, by consent, the jurisdiction of the circuit court was here waived, and the property passed into the hands of the assignee, to be disposed of under the direction of the county court, to all intents and purposes as if the assignee had acquired possession prior to the levy, but subject to the lien created by such writs. It is true that the consent of appellants for the transfer of possession from the sheriff to the assignee, who is trustee for all the creditors as well as for the debtor corporation, was upon the condition that such transfer should be subject to all priorities, liens, and rights that might have been acquired by the levy of said attachment. The right of all parties to the attached property was to remain in statu quo. If appellants by their attachments had acquired valid liens, such liens were to remain unaffected by the order on the sheriff to surrender possession...