Rhawn v. Pearce

• Decision Date: 19 May 1884
• Parties: WILLIAM H. RHAWN et al.v.THOMAS A. PEARCE et al.
• Court: Illinois Supreme Court

110 Ill. 350

1884 WL 9891 (Ill.)

51 Am.Rep. 691

WILLIAM H. RHAWN et al.

v.THOMAS A. PEARCE et al.

Supreme Court of Illinois.

Filed at Ottawa May 19, 1884.

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding. Mr. MELVILLE W. FULLER, for the appellants:

The comity of this State will permit an assignment in insolvency in another State, in pursuance of the laws of such other State, to have full effect upon the property of the insolvent, here, at the time of the assignment, except so far as it may conflict with the rights of our own citizens, or be inconsistent with the positive laws or public policy of Illinois. Story on Conflict of Laws, secs. 420, 929, 938; Bank v. Erle, 13 Pet. 589; Rorer on Inter-State Law, 138, 139; Thurston v. Rosenfeld, 42 Mo. 474; Bethel v. Bethel, 54 Ind. 428; DeWolf v. Johnson, 10 Wheat. 368.

The situs of a debt is the residence of the creditor,--not of the debtor. Wharton on Conflict of Laws, sec. 363; Guillander v. Howell, 35 N. Y. 657; Greene v. Van Buskirk, 7 Wall. 151; Goodwin v. Holbrook, 4 Wend. 379; Kirtland v. Hotchkiss, 100 U. S. 491; Taylor v. Life Association, 13 Fed. Rep. 496; Wilkins v. Ellett, 9 Wall. 740; Goodlet v. Anderson, 7 Lea, 286.

To sustain the proposition that 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, Mr. Wharton cites: Hall v. Boardman, 14 N. H. 38; Hoag v. Hunt, 21 Id. 106; Smith v. Brown, 43 Id. 44; Dunlap v. Rogers, 47 Id. 287; Kidder v. Tufts, 48 Id. 125; Whipple v. Thayer, 16 Pick. 25; Richardson v. Forepaugh, 7 Gray, 546; May v. Wannemacher, 111 Mass. 202; Atwood v. Insurance Co. 14 Conn. 555; Plestero v. Abraham, 1 Paige, 236; Abraham v. Plestero, 3 Wend. 540; Moore v. Bonnell, 2 Vroom, (N. J.) 90; Richardson v. Leavitt, 1 La. Ann. 430; Einer v. Deynoodt, 39 Mo. 69; Thurston v. Rosenfeld, 42 Id. 474; Warren v. Van Buskirk, 35 N. Y. 658; Ward v. Morrison, 25 Vt. 593.

The interest of the equitable owner of a judgment can not be defeated by attachment against the nominal plaintiff and garnishment of the judgment debtor. Hodson v. McConnel, 12 Ill. 170.

The general rule is, that an equitable assignment will prevail when the creditor has notice before suit. Drake on Attachments, sec. 527.

A creditor resident in the place in which an assignment is made is not permitted to assail it in a foreign jurisdiction. Moore v. Bonnell, 31 N. J. L. 97; Einers v. Best, 32 Mo. 240; Richardson v. Forepaugh, 7 Gray, 546; Burlock v. Taylor, 16 Pick. 335; Smith v. Brown, 43 N. H. 44.

Insolvent and bankrupt laws will be enforced in foreign jurisdictions as against creditors who reside in the State where the insolvent or bankrupt proceedings are had. Einers v. Best, 32 Mo. 240; Milne v. Martin, 6 Binn. 653; Mullikin v. Auginbaugh, 1 Pa. 117; Lowery v. Hall, 2 W. & S. 130; Whipple v. Thayer, 16 Pick. 25; Hoyt v. Thompson, 1 Seld. 339.

Mr. S. S. GREGORY, for the appellees:

The situs of the debt garnisheed was in this State, and as the laws of one State have no force outside the limits of the State where enacted, it is plain that the statutes of Pennsylvania could not operate in this State to vest in appellants title to the fund in controversy. Booth v. Clark, 17 How. 322; Willetts v. Waite, 25 N. Y. 577; Hoyt v. Thompson, 5 Id. 320; Osgood v. Maguire, 64 Id. 524; Warren v. Union Nat. Bank, 7 Phila. 166; Burrill on Assignments, sec. 303; City Ins. Co. v. Commercial Bank, 68 Ill. 348; Story on Conflict of Laws, 413; Quincy Railroad Bridge Co. v. Adams County, 88 Ill. 615; Gardner et al. v. Commercial Nat. Bank, 95 Id. 298.

Non-resident creditors, or creditors resident of the State of the debtor, may enforce the collection of their demands by attachment of the debtor's effects in this State, notwithstanding an assignment of the debtor's effects by virtue of a statute of his State. Such creditors are protected the same as resident creditors. Paine v. Lester, 44 Conn. 196; Upton v. Hubbard, 28 Id. 275; Kidder v. Tufts, 48 N. H. 121; Abraham v. Plestero, 3 Wend. 538; Johnson et al. v. Hunt, 23 Id. 87; Taylor v. Geary, Kirby, 313; Wallace v. Patterson, 2 Har. & McH. 463; Hibernia Nat. Bank v. Lacombe et al. 84 N. Y. 367; Harrison v. Sterry, 5 Cranch, 289; Greene v. Van Buskirk, 7 Wall. 139.

Assignees in bankruptcy, or in insolvency, are in the same situation as the bankrupt himself in regard to foreign debts. They take subject to every equity belonging to foreign creditors, and subject to the remedies provided by the laws of the foreign country where the debt is due. Story on Conflict of Laws, sec. 412.

The right of a foreign creditor to sue in a State court the same as a resident creditor, is secured by the Federal constitution. Darris v. Pierce, 7 Minn. 13; Corfield v. Coryell, 4 Washb. 380; McFarland v. Butler, 8 Minn. 116; Jackson v. Butler, Id. 117; Kincaid v. Francis, Cooke, 49; Lemmon v. People, 20 N. Y. 607; Ward v. Maryland, 12 Wall. 418; Williams v. Bruffy, 96 U. S. 176; Ducat v. Chicago, 48 Ill. 172; Fellows v. Lewis, 65 Ala. 343.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of assumpsit, by attachment, brought by appellees, against John Landenberger, a resident of Pennsylvania. The writ was issued on the 17th day of January, 1883, and served on John V. Farwell & Co., of Chicago, as garnishees, on the day following. The garnishees answered, showing an indebtedness from them to Landenberger of $4259.91. On the 13th of February judgment was rendered against Landenberger, and in his favor for the use of appellees, against the Farwells, for the sum admitted due by the answer. At a subsequent day the judgment, on motion of appellants, was vacated, and on the 23d day of February they filed an interpleader, in which they alleged that plaintiffs herein, Thomas A. Pearce and Martin Landenberger, have for many years last past been, and were at the time of the issuing of the writ of attachment in this case, and still are, citizens and residents of the State of Pennsylvania, of which State said John Landenberger, the principal defendant herein, was at said time when said writ of attachment was issued, and prior thereto, also a citizen; that on the 4th day of January, A. D. 1883, a certain writ of domestic attachment was sued out of the Court of Common Pleas No. 1, for the county of Philadelphia, and State of Pennsylvania, by the National Bank of the Republic, a corporation organized under the laws of Congress in that behalf, and located in the city of Philadelphia, in the State of Pennsylvania aforesaid, against the said John Landenberger, defendant, (who is the same John Landenberger who is defendant herein,) and Martin Landenberger, Jr., Charles H. Landenberger, William H. Carpenter and Thomas A. Pearce, garnishees, (which said Martin Landenberger, Jr., and Thomas A. Pearce, are plaintiffs herein,) which said writ of attachment was duly executed January 6, 1883; that thereupon such proceedings were had that on the 29th day of January, 1883, William H. Rhawn, Daniel B. Cummins and David Faust were, by the order and judgment of said court, duly in accordance with the statutes of Pennsylvania in that behalf, appointed trustees of the estate of said John Landenberger, under the writ of domestic attachment issued in the above case, and for the benefit of said John Landenberger's creditors, and duly qualified as such on the 30th day of January, 1883, who thereupon became vested with all the estate of said John Landenberger at the time of the issuing of said writ of domestic attachment, to-wit, on the 4th day of January, A. D. 1883, according to the laws of the State of Pennsylvania, including all debts and things in action due or belonging to said John Landenberger at the date of said attachment or afterward, with capacity to sue therefor in their own names. To the interpleader appellees interposed a general demurrer, which the court sustained, and rendered a judgment in their favor against the garnishees. From this judgment the interpleaders appealed to the Appellate Court, where the judgment of the Superior Court was affirmed, and the trustees, the interpleaders, bring the record here by appeal.

There is no controversy on this record in regard to the facts, and all matters of form are waived by stipulation. The record, therefore, presents nothing but a pure question of law for our decision.

The Pennsylvania statute, relied upon by the appellants, was made a part of the interpleader by stipulation, and where an attachment has been issued, as was done in Philadelphia against Landenberger, as set out in the interpleader, section 17 of the statute provides: “On the return of the writ the court shall appoint three honest, discreet men, not being creditors of the defendant, to be trustees of the defendant.” Section 23 declares: “The trustees aforesaid shall be deemed to be vested with all the estate of the debtor at the time of issuing the said attachment, subject to all liens existing at that time; and it shall be their duty to take into their possession all the said estate, whether attached as aforesaid, or afterwards discovered by them, and all books, vouchers and papers relating to the same; and they shall be capable of suing for and recovering in their own names all the said estate, and all debts and things in action due or belonging to such debtor at the date of the attachment, or at any time thereafter.” Appellants having been appointed trustees under this statute, can they, as such, hold the property in question as against appellees, who are residents of the State of Pennsylvania, but who have brought their action in the courts of this State and garnisheed the fund?

It is not claimed that Landenberger made a voluntary assignment, and that the debt due from Farwell & Co. ...