{
  "id": 2737865,
  "name": "Jarecki Manufacturing Company, Appellant, v. Samuel T. Dailey et al., The National Bank of the Republic, Garnishee, and Studebaker Bank, Interpleader, Appellees",
  "name_abbreviation": "Jarecki Manufacturing Co. v. Dailey",
  "decision_date": "1911-10-05",
  "docket_number": "Gen. No. 15,825",
  "first_page": "399",
  "last_page": "406",
  "citations": [
    {
      "type": "official",
      "cite": "163 Ill. App. 399"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "112 Ind. 158",
      "category": "reporters:state",
      "reporter": "Ind.",
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        1355298
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ind/112/0158-01"
      ]
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  "last_updated": "2023-07-14T18:45:41.237543+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Jarecki Manufacturing Company, Appellant, v. Samuel T. Dailey et al., The National Bank of the Republic, Garnishee, and Studebaker Bank, Interpleader, Appellees."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Brown\ndelivered the opinion of the court.\nThere are various technical objections raised by the appellee to our consideration of this appeal on the record which has come to us, of which objections it is not necessary to say more than that they are not well taken.\nThe substantial questions in the case are properly before us, we think, for decision.\nBut in the view we take of it, it is only necessary to discuss one. The appellant\u2019s whole case is based on the position that John Dailey had no authority to endorse for Dailey Bros, the draft which is involved and which is- described in the statement prefixed to this opinion.\nIt does not matter, therefore, what ultimate decision of the appeal we might arrive at were we convinced of the correctness of this premise of the appellant\u2019s argument. Without g'oing further into it, we may place our decision on our want of such conviction. The burden of sustaining the traverse of the garnishee\u2019s answer was undoubtedly on the plaintiff. The garnishee expressly denied having in its hands any assets of the .defendants or being indebted to them. This denial entitled it to the discharge given to it by the judgment unless overcome by proof. Under no theory could the answer detailed in the prefixed statement to the interrogatory concerning the collection of a check payable to the Dailey Bros, be held to charge the garnishee unless it was supplemented by proof that this piece of negotiable paper endorsed \u201cDailey Bros.\u201d and collected, as the answer discloses, for and as the property of the Studebaker Bank, was at the time of collection the actual property of the defendants. The plaintiff\u2019s theory is that it has furnished that proof by the testimony of Fenton, district manager of the plaintiff company, that Samuel and Homer Dailey composed the firm of Dailey Bros., supplemented by an answer in the deposition of Catherine F. Dailey, stepmother of the defendants, to the same effect and a further answer that it was John Dailey who endorsed the check.\nBut, leaving out of account that it is a very doubtful proposition, considering the presumptions concerning signatures necessary to the negotiation of commercial paper, whether, if the non-membership of John Dailey in the firm of Dailey Bros, was to be taken as proved, this would furnish even sufficient prima facie evidence of the endorsement being without authority, we do not agree with the plaintiff\u2019s contention that the non-membership of John Dailey was proved. Fen-ton declared that his knowledge was derived from Samuel and Homer Dailey\u2019s statement to him. That was pure hearsay, only admissible against Samuel and Homer Dailey, as an admission against their interest, not as self-serving testimony in their favor. (Rush v. Thompson, 112 Ind. 158.) But the attaching creditor, who is suing Samuel and Homer Dailey alone, is pursuing the garnishee in their right. His interest in this draft is their interest, not one adverse to them. The interest of the garnishee and of the interpleader, on the other hand, comes from John Dailey\u2019s action and is in privity with his interest. The testimony of Fen-ton, therefore, is clearly inadmissible and worthless as against the garnishee to prove John Dailey not a member of the firm.\nMrs. Dailey\u2019s testimony to the same effect is rendered futile by the fact that in the same deposition she retracts it. \"When asked, \u201cWho gave him (John) the authority to endorse the name of \u2018Dailey Bros.?\u2019 \u201d she answered: \u201cHe is one of the Dailey Brothers you know.\u201d The inquiry then proceeded:\n\u201cQ. He was not a member of the firm of Dailey Bros. ?\nA. I could not tell you that part of it.\nQ. You have said he was not.\nA. I don\u2019t know whether all four of them were in it. All four of them are Dailey Brothers.\u201d\nFenton\u2019s and Mrs. Dailey\u2019s testimony is all the evidence relied on by the plaintiff to show that John Dailey was not a member of the firm of Dailey Bros.\nOn the other hand, the record shows that there were four brothers named Dailey connected with the transactions out of which this controversy sprung. They were the sons of Michael F. Dailey, deceased. Their names were Samuel, Homer, John and Charles. The witness Perlman of the Jareeki Manufacturing Company says: \u201cThe Daileys were contractors of big oil wells,\u201d and it appears that the widow of Michael F. Dailey was also interested in oil wells. The original debt in question here was for things needed in the construction of an oil well. One of the witnesses called by the plaintiff, an officer of a bank doing business with the family, in answer to the question, \u201cDo you know who composed the firm of Dailey Bros.?\u201d answered, \u201cI don\u2019t know to a certainty\u2014sons of Michael Dailey. \u201d\nThe widow of Michael F. Dailey, through whose negotiations the draft came to the garnishee ultimately, had an account with the bank dating back to her marriage with the father of these four sons, and, as already noted, was herself interested in oil wells, and seems at times to have acted as treasurer for the boys \u2019 business, although as to the draft involved here, the most definite evidence there is about it shows that she was a holder for value. At all events the positive evidence is that the Studebaker Bank was such a holder.\nThe plaintiff\u2019s manager, going to the Dailey farm, as he says, to investigate the truth of Samuel\u2019s taking the check and leaving the neighborhood; talked about the matter with John and Charles, as well as Homer, and says that John spoke about the injury that Sam had done \u201cthem\u201d in getting a check for a well which he was to send \u201cthem\u201d and \u201cskipping\u201d with it and leaving \u201cthem\u201d in the lurch; and it was John apparently who in the same conversation at which all the brothers except Samuel were present, said that it was their intention as soon as they received the check to take it to the plaintiff\u2019s office and pay the claim.\nThere seems as much competent evidence showing that John was a member of the firm as that Homer was. The yard foreman for the plaintiff company says that Samuel alone ordered the goods that were delivered by that company.-\nIt appearing under this state of the evidence that John endorsed the draft \u201cDailey Bros.,\u201d and that so endorsed it came into the hands of a purchaser for value, we think that the plaintiff was very far from sustaining the burden cast upon it by any theory on which it could hold the garnishee, to show that the endorsement was a forgery or without authority.\nWe are somewhat at a loss to know why the first judgment, which seems to us correct in dismissing the interplea after discharging the garnishee, should have been vacated and one substituted which adjudicated costs in its favor but gave no other relief to the inter-pleader. In a case like this, where the property attached is alleged to be an indebtedness to be reached by garnishment, and the garnishee answers that it owes nothing to the defendants, the finding of the issues in its favor seems to us to leave nothing to be done to the interpleader\u2019s petition but to deny or dismiss it.\nThe twelfth assignment of error questions the rightfulness of this judgment for costs. Although it is not specifically argued, we must hold it well assigned. So far as the judgment of the Municipal Court gives costs to the Studebaker Bank against the plaintiff it is reversed; in all other respects it is affirmed.\nReversed in part and affirmed in part.",
        "type": "majority",
        "author": "Mr. Presiding Justice Brown"
      }
    ],
    "attorneys": [
      "Castle, Williams Long & Castle, for appellant.",
      "Newman, Northrup, Levinson & Becker, for appellee."
    ],
    "corrections": "",
    "head_matter": "Jarecki Manufacturing Company, Appellant, v. Samuel T. Dailey et al., The National Bank of the Republic, Garnishee, and Studebaker Bank, Interpleader, Appellees.\nGen. No. 15,825.\n1. Garnishment\u2014when garnishee entitled to discharge. If the answer of the garnishee denies property in its hands it is entitled to a discharge unless such answer is overcome by proof.\n2. Garnishment\u2014when interpleader properly sustained. Held, under the evidence, that the title to a check originally owned by the principal debtors had passed and that the proceeds thereof in the hands of the collecting bank were not susceptible to garnishment.\n3. Evidence\u2014against whom admissions competent. Admissions against interest are only competent as against those making them.\nAppeal from the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in this court at the October term, 1909.\nReversed in part and affirmed in part.\nOpinion filed October 5, 1911.\nStatement by the Court. This is an appeal by the plaintiff, the Jarecki Manufacturing Company, from a judgment of the Municipal Court of Chicago in favor of The National Bank of the Republic, garnishee, that the said Bank as garnishee he discharged, and in favor of the said National Bank of the Republic, garnishee, and Studebaker Bank as interpleader, against the said Jarecki Manufacturing Company for costs.\nThe original suit was one of the first class, in attachment. According to the affidavit for attachment it was brought by the Jarecki Manufacturing Company against \u2018\u2018Samuel T. Dailey and Homer M. Dailey, doing business as Dailey Bros., upon a running account for goods, wares and merchandise sold and delivered,\u201d the ground of attachment being the non-residence of the defendants. So far as the record shows, there has been no appearance of or personal service on the original defendants or attachment or garnishment of any other property belonging to them than that alleged to be garnished in the hands of the National Bank of the Republic. After the service of the garnishment, however, the usual notice by publication was made and mailed to the alleged address of the defendants. They were called and defaulted on January 12, 1909, and the plaintiff\u2019s damages were assessed by the Court on April 23, 1909, at $1183.04.\nOn November 8, 1908, the attachment writ was served on The National Bank of the Republic of Chicago, and on November 30,1908, interrogatories to said Bank were filed. To the direct interrogatories asking whether the garnishee had, at the time of the service of the writ or since, any property of Dailey Bros., Samuel T. Dailey or Homer M. Dailey, or either of them, in its hands, or was then or since indebted to them, the answer by the garnishee was a direct negative.\nTo the interrogatory: \u201cDid you on or about the day of the service upon you of said writ collect any drafts or checks payable to the order of said Dailey Bros., Samuel T. Dailey or Hom\u00e9r. M. Dailey?\u201d the garnishee answered that on' November 18, 1908, the Studebaker Bank of Bluffton, Indiana, sent in the regular course of business certain checks to the National Bank of the Republic (the garnishee), and among them a check drawn by the First National Bank of Bridgeport, Illinois, by its cashier, to the order of \u201cDailey Bros.\u201d for $1300 on the Fort Dearborn National Bank of Chicago. The check was endorsed in blank, \u201cDailey Bros.,\u201d and then specially endorsed to The National Bank of the Republic by the Studebaker Bank. The garnishee collected the check through the Chicago Clearing House on November 19, 1908, in the regular course of its business and, pursuant to the instructions of the Studebaker Bank, placed the proceeds on its books to the credit of the Studebaker Bank, which had continuously for many years kept a general deposit account with the garnishee. The Studebaker Bank has drawn its checks, drafts and bills of exchange on said banking and deposit account. The garnishee further answered that it was informed and believed that the check and its proceeds were, at the time of the service of the writ of attachment on it, the sole and absolute property of the Studebaker Bank and that the plaintiffs had no right or interest therein.\nIn the same order of April 23, 1909, which assessed the plaintiff\u2019s damages, leave was granted by the court to Studebaker Bank to interplead, and further the order reads: \u201cIt appearing to the court from the answer of the garnishee, The National Bank of the Republic, that no funds were found, leave is given to traverse answer of said garnishee and thereupon this cause comes on for trial on the traverse of the garnishee\u2019s answer and upon the interplea.\u201d\nThe Studebaker Bank on the same day filed its inter-plea, claiming to be the sole owner of and entitled \u201cto the funds garnished by virtue of the attachment writ herein and now in the possession of The National Bank of the Republic, of Chicago.\u201d\n\u25a0 It alleges that it purchased the draft in question on November 18, 1908, from one Catherine F. Dailey, and in payment therefor issued to Catherine F. Dailey its certificate of deposit for $1300, on which certificate it remains liable to Catherine F. Dailey or order; that when purchased it bore the endorsement, \u201cDailey Bros.;\u201d that it forwarded the draft to the National Bank of the Republic for collection and that it was collected and the proceeds placed to the credit of the Studebaker Bank in the regular course of business, as set up in the answer of the National Bank of the Republic, and that the draft and proceeds have, ever since the purchase of the draft by the Studebaker Bank, been its property, and that neither said Dailey Bros, nor any. member of said firm nor any other person had any right or interest in the same.\nThe plaintiff, the Jareeki Manufacturing Company, also on the same day filed a sworn general traverse of the answer of the garnishee, the National Bank of the Republic, to its interrogatories, which concluded: \u201cAnd the said plaintiff denies that the endorsement \u2018Dailey Bros.\u2019 on said draft, as it appears by the answer to said interrogatories was executed by either the said Samuel T. Dailey or Homer M. Dailey, members of said firm of Dailey Bros., or by any person having authority to endorse the said draft. \u2019 \u2019\nOn the 26th day of April, 1909, the Municipal Court entered an order reciting that it had heard the evidence and-being fully advised found the issues for the National Bank of the Republic as garnishee. It therefore discharged the garnishee and ordered that the suit be dismissed as to the interplea.\nOn May 26, 1909, by stipulation in open court the order of April 26th was vacated and another order entered nunc pro tunc as of April 26th. This is the order first above described in this statement and is the judgment appealed from.\nIn this court the plaintiff\u2014appellant\u2014insists on assignments of error attacking the discharge of the garnishee and the judgment for costs in favor of the National Bank of the Republic and the Studebaker Bank, claiming that there should have been judgment in favor of the defendants, Samuel T. Dailey and Homer M. Daily, for the use of the plaintiff against the garnishee, The National Bank of the Republic, for $1183.04.\nCastle, Williams Long & Castle, for appellant.\nNewman, Northrup, Levinson & Becker, for appellee."
  },
  "file_name": "0399-01",
  "first_page_order": 419,
  "last_page_order": 426
}