The Singer v. Wheeler

• Decision Date: 31 March 1880
• Citation: 6 Bradw. 225,6 Ill.App. 225
• Parties: THE SINGER AND TALCOTT STONE COMPANYv.WILLIAM E. WHEELER.
• Court: United States Appellate Court of Illinois

6 Ill.App. 225

6 Bradw. 225

THE SINGER AND TALCOTT STONE COMPANY

v.WILLIAM E. WHEELER.

Appellate Court of Illinois, First District.

March Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. W. H. BARNUM, Judge, presiding. Opinion filed March 29, 1880.

Mr. H. M. MATTHEWS, for appellant; that the statute relating to garnishment does not extend to municipal corporations, cited Erie v. Knapp, 29 Pa. St. 173; Hawthorne v. St. Louis, 11 Mo. 59; Fortune v. St. Louis, 23 Mo. 239; Wales v. Muscatine, 4 Iowa, 302; Lyell v. Supervisors, 3 McLean, 580; Hadley v. Peabody, 13 Gray, 200; Whidden v. Drake, 5 N. H. 13; Bray v. Wallingford, 20 Conn. 416; City of Newark v. Funk, 15 Ohio St. 462; Browning v. Bettis, 8 Paige, 568; McCoun v. Dorsheimer, Clark, 144; Thompson v. Dixon, 3 Edw. 457; Tarbell v. Griggs, 3 Paige, 208.

Generally as to equity jurisdiction in cases of discovery: Angel v. Draper, 1 Vern. 398; Stillman v. Ashdown, 2 Atk. 477; Shirley v. Watts, 3 Atk. 200; Balch v. Westall, 1 P. Wms. 445; Taylor v. Jones, 2 Atk. 602.

Mr. CONSIDER H. WILLETT and Mr. D. W. C. CASTLE, for appellee; that an execution cannot issue against a municipal corporation, cited Chicago v. Halsey, 25 Ill. 598; Olney v. Harvey, 50 Ill. 453; Elrod v. Bernadotte, 53 Ill. 369; Odell v. Schroeder, 58 Ill. 353; Taylor v. The People, 66 Ill. 322; Knox Co. v. Arms, 22 Ill. 175; King v. McDrew, 31 Ill. 418.

A municipal corporation cannot be subjected to garnishment process: Mayor, etc. v. Root, 8 Md. 102; Chivley v. Brewer, 7 Mass. 260; Bulkley v. Eckert, 3 Barr, 368; Burnham v. The City, etc. 15 Wis. 194; McDougall v. Board, etc. 4 Minn. 184; Mayor v. Rowland, 26 Ala. 503; Bank v. Dibrell, 3 Sneed, 382; Hawthorn v. St. Louis, 11 Mo. 59; Triebel v. Colburn, 64 Ill. 376.

WILSON, J.

This was a creditor's bill brought by appellant against appellee in the Circuit Court of Cook county.

The bill contains the usual averments in bills of this nature, the recovery of a judgment against the defendant, issue of execution, return of nulla bona by the sheriff, etc., and prays for a discovery by the defendant of his effects and property rights, and that he may specially set forth what is due him as county commissioner, and in what shape or form it is, and where the order for the same is, if any has been issued, and that he may be decreed to assign the same to complainant or to a receiver therefor to be appointed by the court, to draw such sum of money as shall be found to be due to said defendant from the county, and apply the same in payment of complainant's judgment.

The bill alleges that the defendant is one of the county commissioners of Cook county, and that there is due to him for services rendered in that capacity, a large sum of money, or that he has in his possession or in the possession of some person for his use and benefit, a large part of his salary as such commissioner, and prays that he may be enjoined from selling, transferring, or receiving any debts or demands due to him, or to which he may be entitled on book account or county orders, from Cook county, whether in his possession or in the possession of the county treasurer, or held by some other person in trust for him, and in which he has any interest.

A demurrer to the bill was filed by the defendant, and on the hearing of the same it was stipulated that the prayer for discovery, as well as the entire case, should be limited to the complainant's right to file a creditor's bill in respect to the salary of the defendant as county commissioner, all other questions being waived.

In the printed briefs submitted to us the counsel have directed their attention mainly to the law of garnishment as it exists in this and other States, and its application to municipal corporations. As neither the county nor the county treasurer are made parties, nor any relief sought against them, we fail to perceive the relevancy of the arguments on that subject. No discovery is sought from the county, nor is any action proposed in respect to it, either by garnishment or otherwise. So far as we can perceive, it is simply an ordinary creditor's bill, seeking a disclosure from a judgment debtor as to an alleged indebtedness of the county to him for his services as county commissioner, and praying that he be required to state whether the county is indebted to him, and in what amount, how the indebtedness is evidenced, whether by county orders or otherwise, and if by county orders, in whose possession they are; in short, to disclose the true condition of affairs in that behalf, to the end that a receiver may be appointed to receive any moneys or evidences of indebtedness belonging to the defendant, in order that the same may be applied in satisfaction of the complainant's judgment. This is the entire scope and object of the bill.

The claim that his office of commissioner, or the circumstance that the indebtedness from the county to him for his salary as such officer, exempts him from liability to disclose, is sanctioned by neither reason nor authority. For all the purposes of a discovery it is quite immaterial from whom the indebtedness is due, or how...