Rucker v. Fuller
| Citation | 1849 WL 4280,11 Ill. 223,1 Peck 223 |
| Court | Supreme Court of Illinois |
| Decision Date | 31 December 1849 |
| Parties | JOSIAH H. RUCKER and JAMES GORDON and COLLINS & KELLOGGv.DAVIS FULLER. |
11 Ill. 223
1849 WL 4280 (Ill.)
1 Peck (IL) 223
JOSIAH H. RUCKER and JAMES GORDON and COLLINS & KELLOGG
v.
DAVIS FULLER.
Supreme Court of Illinois.
December Term, 1849.
The agreed case shows that Collins and Kellogg, as also Gordon and Rucker, sued out attachments against one Carlisle,
[11 Ill. 224]
returnable to the September term, 1849, of the Morgan county circuit court; which attachments were levied upon real and personal estate, and under them debts were also garnisheed. The circuit court to which these attachments were made returnable, stood adjourned, at four of the clock in the afternoon of the second day of the term, under the statute, in consequence of the non-attendance of the judge. Afterwards, the judge appointed a special term of the court, to be held on the third Monday of November, 1849; during which term the attaching creditors obtained their judgments against Carlisle. Fuller, the defendant in error, at the special term of the court, also obtained a judgment against Carlisle, in assumpsit, upon a cognovit. At the same term the court directed, among other things, that the proceeds of all the property attached, after the costs should be paid, should be divided pro rata between the plaintiffs in the attachment suits and the plaintiff in the suit in assumpsit. To this order all the parties excepted. In the case of Fuller against Carlisle, in assumpsit, it was agreed, that the power of attorney authorized the confession of a judgment to Fuller, at the said September term, or any subsequent term, of said court. All the judgments were entered at the same term, but the suit of Fuller against Carlisle was not entered upon the docket until the special term. The cause was brought to this court for the purpose of settling the exceptions above stated, as to the rateable disposition of the effects attached in said attachment causes. Cause tried before Woodson, judge.M. M'CONNEL, for Rucker Co.
DAVID A. SMITH, for Collins & Kellogg:
The decision of the question made must depend upon the proper construction, of sec. 26, title, “attachments in the circuit courts,” and secs. 28, 43, 50, title, “courts,” of Revised Statutes. 1. Under sec. 26, by its very terms, in order to give a judgment creditor, proceeding by attachment, the right to share in the proceeds of the property attached, he must obtain his judgment against the defendant in attachment, at the same term to which the writ or writs of attachment may be returnable. 2. To what term of the court were the attachments of the plaintiffs in error made returnable? By their very terms, to the
[11 Ill. 225]
September term, 1849--from which they were continued, by operation of law, “until the next succeeding term.” Sec. 28, title...To continue reading
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... ... cannot disregard the plain language of a statute, and it is their duty to accept it as they find it and enforce it as it is plainly written"); Rucker v. Fuller, 11 Ill. 223, 229, 1849 WL 4280 (1849) ("when the Legislature has clearly declared its intention, the Courts have no power to depart from ... ...
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In the Matter of The EState v. Jones
...of court, and levied on the same [16 Ill. 120]estate. This is the construction given to the statute, in the cases of Rucker v. Fuller, 11 Ill. 223, and Warren v. The Iscarian Community, 16 Ill. 114. After the attachment suits are all determined, and the proceeds of the estate attached are r......
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Warren v. the Iscarian Cmty..
...are entitled to participate in the distribution of the proceeds, although they may not obtain judgment at the same time. Rucker v. Fuller, 11 Ill. 223. The statute puts all such creditors upon equal footing. It makes the estate attached, a common fund for the payment of their debts. The pro......
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... ... H. S. & F. S. OSBORNE, for appellant; cited Rucker v. Fuller, 11 Ill. 223; Pollock v. Slack, 92 Ill. 221.Mr. R. W. CLIFFORD, for appellee; that the Attachment Act should be liberally construed, cited ... ...