{ "id": 5122103, "name": "Scheubert v. Honel et al.", "name_abbreviation": "Scheubert v. Honel", "decision_date": "1893-05-24", "docket_number": "", "first_page": "597", "last_page": "600", "citations": [ { "type": "official", "cite": "50 Ill. App. 597" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "59 Ill. 58", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5232670 ], "opinion_index": 0, "case_paths": [ "/ill/59/0058-01" ] }, { "cite": "17 Ill. 344", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2591859 ], "opinion_index": 0, "case_paths": [ "/ill/17/0344-01" ] }, { "cite": "18 Ill. 145", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 438619 ], "opinion_index": 0, "case_paths": [ "/ill/18/0145-01" ] }, { "cite": "2 Gil. 670", "category": "reporters:state", "reporter": "Gilmer", "opinion_index": 0 }, { "cite": "79 Ill. 207", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2687870 ], "opinion_index": 0, "case_paths": [ "/ill/79/0207-01" ] }, { "cite": "24 Ill. 257", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5288137, 5285222 ], "opinion_index": 0, "case_paths": [ "/ill/24/0257-02", "/ill/24/0257-01" ] }, { "cite": "139 Ill. 538", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3005898 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/139/0538-01" ] } ], "analysis": { "cardinality": 370, "char_count": 8224, "ocr_confidence": 0.461, "pagerank": { "raw": 4.2377422844640545e-07, "percentile": 0.9146102726452392 }, "sha256": "76bc0df7ed36069fd6b19fb59159f335dd0cc0968b12a4e998ea58919d15bde2", "simhash": "1:5fc298287c23adf9", "word_count": 1428 }, "last_updated": "2023-07-14T15:57:42.711650+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Scheubert v. Honel et al." ], "opinions": [ { "text": "Opinion of the Court,\nShepard, J.\nA judgment by confession under a warrant of attorney, was entered in favor of appellant against the appellees, and on the same day execution was issued thereon, which execution was on the same day returned by the sheriff, by direction of plaintiff\u2019s (appellant\u2019s) attorney.\nThe direction and the return appear on the back of the execution, and are as follows:\n\u201c The sheriff will return this writ, no property found and no part satisfied, forthwith..\nDated February 21,1887.\nJas. E. Cross,\n\u2022 Attorney for Plaintiff.\nThis execution returned, no property found and no part satisfied, this 21st day of February, 1887.\nCanute R. Matson, Sheriff,\nBy C. W. Peters, Deputy.\u201d\nFlo other execution appears ever to have been issued on the judgment.\nAfterward appellant filed his creditor\u2019s bill, based upon said judgment, and return of execution.\nThe court heard the whole cause, and dismissed the bill for want of equity, and it is from that decree this appeal is prosecuted.\nIt is unnecessary for us to look at the merits of the cause as disclosed on the hearing below.\nThe bill was properly dismissed, on the ground that there had been no exhausting of the appellant\u2019s remedy at law, by the issuance of an execution and a proper return thereof by the sheriff.\nIn order to obtain a footing for a creditor\u2019s bill in a court of equity, it must appear that the creditor has \u201c exhausted his legal remedies by obtaining judgment, suing out execution, having the sheriff make proper efforts to collect the judgment by that means, and, such efforts proving unavailing, by having him return the execution unsatisfied.\u201d Russell v. Chicago Trust and Savings Bank, 139 Ill. 538.\nIt is further said in the case cited, that under the provisions of the section of the chancery act in relation to creditor\u2019s bills, \u201c It has been the uniform doctrine of this court that a creditor who seeks by his bill to reach equitable estate of his debtor which can not be reached at law, must first recover judgment at law, and have execution returned unsatisfied, to give jurisdiction to equity,\u201d and the numerous decisions of the Supreme Court of this State upon that point are cited in support of the statement.\nThe right to resort to the extraordinary remedy of a creditor\u2019s bill rests upon the precedent fact that the creditor\u2019s legal remedy has been exhausted.\nUnder the decisions of this State there is no method of ascertaining that fact except by a return of an execution nulla bona. Such a return becomes a matter of record, and shows, prima facia, that the creditor has exhausted his legal remedy, and an opportunity for the interposition of a court of chancery thereupon arises.\nWhen an execution has been issued the sheriff has ninety days from its date in which to find property to levy upon, and, generally, it is his duty to hold the writ during all that time; \u201c but he may take the responsibility of making an earlier return to it of nulla bona, especially after he has made a personal demand upon the defendant to turn out property, and he has refused so to do.\u201d\nThe law requires no more as a precedent to jurisdiction in chancery than a return by the sheriff of an execution nulla bona, but the return must be made upon the responsibility of the sheriff, that is to say, the return must be the act of the sheriff, on his own responsibility, and not by direction of the plaintiff in the writ, unless after demand. Bowen v. Parkhurst, 24 Ill. 257; First Nat. Bank v. Gage, 79 Ill. 207; Russell v. Chicago T. and S. Bank, 139 Ill. 538.\nIt must appear that the execution has been returned by \"the sheriff \u201c unsatisfied by reason of his inability to find property whereon to levy,\u201d Durand v. Gray, 129 111, 9, Although an execution is the process of the judgment creditor,-and is subject to his control, and the sheriff is subject to his instructions in regard to the writ (Beddick v. Cloud\u2019s Administrators, 2 Gil. 670; Wickliff v. Robinson, 18 Ill. 145; Newkirk v. Chapron, 17 Ill. 344; Morgan v. The People, 59 Ill. 58), yet he is not at liberty to so control it as to confer upon himself a new remedy against the judgment debtor by a proceeding in chancery, without first complying with the statute which is declaratory of previous law, and gives that remedy after his legal remedy has been exhausted by \u201c having the sheriff make proper efforts to collect the judgment by that means\u201d (execution), as said in Russell v. C. T. and S. Bank, supra.\nIn the c\u00e1se at bar it plainly appears from the indorsement of the direction of plaintiff\u2019s attorney to the sheriff, and the return of the latter, that the return to the execution was in substance the act of the plaintiff\u2019s attorney, and. that in making the return the sheriff exercised no volition or responsibility whatever.\nThe direction and the return must be read together, and so read it is as if the sheriff had returned that the plaintiff\u2019s attorney had instructed him not to make a personal demand upon the defendant, and not to levy upon any property of the defendant, and not to do any act whereby the execution might be paid or collected, and he, therefore, returned the execution no property found and no part satisfied. \u25a0\nTo sanction such a return as being a proper basis for a creditor\u2019s bill would render the most solvent individuals and corporations within the' State, who might in an honest controversy have judgment recovered against them, subject to the humiliation and sometimes serious loss and inconvenience of having a creditor\u2019s bill maintained against them, wherever a malevolent adversary should so elect.\nSuch is not the spirit and intent of the law. The return to the execution was not such a return as must be made to give jurisdiction to a court of chancery, and the bill was properly dismissed by the Superior Court.\nThe decree will therefore be affirmed.", "type": "majority", "author": "Shepard, J." } ], "attorneys": [ "J. A. Peterson, attorney for appellant.", "Cross & Jindrich, attorneys for appellees." ], "corrections": "", "head_matter": "Scheubert v. Honel et al.\n1. Creditor\u2019s Bill\u2014When it lies. \u2014In order to obtain a footing for a creditor\u2019s bill in a court of equity, it must appear that the creditor has exhausted his legal remedies by obtaining judgment, suing out execution, having the sheriff make proper efforts to collect the judgment by that means, and such efforts proving unavailing, by having him return the execution unsatisfied.\n2. Creditor\u2019s Bill.\u2014Legal Prerequisites.\u2014A creditor who seeks by his bill to reach an equitable estate of his deb,tor, which can not be reached by law, must first recover judgment at law, and have execution returned unsatisfied, to give jurisdiction to equity.\n3. Creditor\u2019s Bill.\u2014Exhausting the Remedy at Law.\u2014There is no method of ascertaining that the creditor\u2019s legal remedy has been exhausted except by a return of an execution nulla bona. Such a return becomes a matter of record, and shows prima facie, that the creditor has exhausted his legal remedy, and an opportunity for the interposition of a court of chancery thereupon arises.\n4. Creditor\u2019s Bill.\u2014Sheriff\u2019s Duty on Execution.\u2014When an execution has been issued, the sheriff has ninety days from its date in which to find property to levy upon, and generally it is his duty to hold the writ during all that time; but he may take the responsibility of making an earlier return to it of nulla bona, especially after he has made a personal demand upon the defendant to turn out property, which he has refused to do.\n5. Creditor\u2019s Bill.\u2014The Return of the Sheriff Must Be upon His Own Responsibility.\u2014The law requires no more as a precedent to jurisdiction in chancery than a return by the sheriff of an execution nidia bona, but the return must be made upon the responsibility of the sheriff; it must be the act of the sheriff on his own responsibility, and not by direction of the plaintiff in the writ.\n6. Execution\u2014Subject to the Creditor\u2019s Control.\u2014An execution is the process of the judgment creditor, and is subject to his control, and the sheriff is subject to his instructions in regard to it.\nMemorandum.\u2014Creditor\u2019s bill. In the Superior Court of Cook County; the Hon. William G. Ewing, Judge, presiding. Heard in this court at the March term, 1893, and affirmed.\nOpinion filed May 24, 1893.\nThe opinion states the case.\nJ. A. Peterson, attorney for appellant.\nCross & Jindrich, attorneys for appellees." }, "file_name": "0597-01", "first_page_order": 593, "last_page_order": 596 }