Pogue v. Rowe

• Decision Date: 26 October 1908
• Citation: 236 Ill. 157,86 N.E. 207
• Parties: POGUE v. ROWE, Constable.
• Court: Illinois Supreme Court

236 Ill. 157

86 N.E. 207

POGUE

v.ROWE, Constable.

Supreme Court of Illinois.

Oct. 26, 1908.

Error to De Kalb County Court; W. L. Pond, Judge.

Action by James B. Pogue, trustee, against W. H. L. Rowe, constable. There was a judgment for defendant, and plaintiff brings error. Reversed and remanded.Forssen & Cochran (George W. Dunton, of counsel), for plaintiff in error.

In 1906 John Clausen was a merchant in De Kalb county, owning a stock of merchandise and some other personal property. He was insolvent. He made a common-law assignment to J. B. Pogue for the benefit of his creditors, and Pogue took possession of the stock of merchandise, and the other property and proceeded to administer the trust. The Rock Island Plow Company was one of the creditors. It secured a judgment against Clausen, after Pogue had taken possession, for the sum of $131. An execution issued on that judgment to the defendant in error, who is a constable, and by virtue of that execution a levy was made upon a portion of the merchandise in Pogue's possession. Thereupon Pogue sued out a writ of replevin from a justice's court, and regained possession of the goods. Upon a trial before the justice, there was a judgment in favor of the constable. Pogue appealed to the county court of De Kalb county. A jury was impaneled and the evidence taken, when by agreement of the parties the jury was discharged and the cause was submitted for determination by the court. Propositions of law were tendered by both parties and passed upon by the court. Judgment was entered in favor of the constable. The constitutionality of the so-called ‘Bulk Sales Act’ (Laws 1905, p. 284) was involved, and Pogue has sued out of this court a writ of error to review the judgment of the county court, and contends that the court erred in passing upon the propositions of law submitted. The only brief on file is that of plaintiff in error.

SCOTT, J. (after stating the facts as above).

When the property was transferred to Pogue, there was no attempt to comply with the so-called ‘Bulk Sales Act.’ Laws 1905, p. 284. The court held the transfer to Pogue to be void on account of this noncompliance. This view is erroneous. That act is unconstitutional. We have so held since this case was tried in the county court. Off v. Morehead, 235 Ill. 40, 85 N. E. 264.

The court also held that, irrespective of that statute, Pogue did not obtain by virtue of the assignment any title to the property which would enable him to maintain a suit in replevin against the constable. This, also, was erroneous. The court seems to have proceeded on the theory that a valid common-law assignment for the benefit of creditors cannot be made under the law of this state as it now exists. The national bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]) suspended the statute of this state in reference to voluntary assignments for the benefit of creditors (Harbaugh v. Costello, 184 Ill. 110, 56 N. E. 363,75 Am. St. Rep. 147), and the debtor may make a common-law assignment for the benefit of his creditors, which is valid so far...