{ "id": 5113579, "name": "Buxbaum & Co. v. Dunham, for the use of Kauffman", "name_abbreviation": "Buxbaum & Co. v. Dunham ex rel. Kauffman", "decision_date": "1894-01-11", "docket_number": "", "first_page": "240", "last_page": "243", "citations": [ { "type": "official", "cite": "51 Ill. App. 240" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "21 Ill. 202", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "20 Ill. 101", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2596681 ], "opinion_index": 0, "case_paths": [ "/ill/20/0101-01" ] } ], "analysis": { "cardinality": 324, "char_count": 5662, "ocr_confidence": 0.464, "pagerank": { "raw": 2.797389548533855e-07, "percentile": 0.8365551427901781 }, "sha256": "3b82fecd65a02883e8e30a3421820a1c13f76a112d9e6fe133f459c15ffb2e65", "simhash": "1:b7df25f53ea1d4fc", "word_count": 1001 }, "last_updated": "2023-07-14T18:36:15.137575+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Buxbaum & Co. v. Dunham, for the use of Kauffman." ], "opinions": [ { "text": "Mr. Justice Gary\ndelivered the opinion op the Court.\nJ o'hn W. Kauffman, for whose use this action was instituted recovered judgment at the June term, 1893, against the above named appellee.\nBy subsequent proceedings garnishee process sued out by Kauffman was served June 22,1893, upon the Oakland Club, which is a tenant of Dunham, tinder a lease to expire May 1, 1896, the rent payable in advance on the first day of each month.\nThe appellants claim the rent by a petition, which, after showing a consideration of an indebtedness to be secured, alleges that \u201cthe said Dunham did on the 27th day of June, 1893, assign and deliver to\u201d them the lease.. We understand by this that on the lease some sort of indorsement purporting to assign the lease was made.\nMow, while the lessor has no estate under a lease \u2014 only the rent\u2014vet such an indorsement does transfer the equitable right to that. Chapman v. McGew, 20 Ill. 101; Dixon v. Buell, 21 Ill. 202.\nKauffman recovered a judgment against Dunham, June 5, 1893. An execution was issued and duly returned \u201cno property found.\u201d\nKauffman then filed an affidavit as is required by the statute in cases of garnishment after judgment, and garnishee summons was issued and served on the Oakland Club as garnishee on June 22, 1893.\nFive days after such service, on June 27, 1893, Dunham, the judgment debtor, assigned to Buxbaum & Co. his interest in a lease which he owned as lessor of the premises occupied by the Oakland Club as his lessee. Buxbaum & Co. served a notice on the Oakland Club that the lease had been assigned to them, and that it would be terminated unless the rent for July was paid to them on nr before July 31st.\nTo avoid the possibility of a termination of its- lease, the Oakland Club filed its petition on July 29, 1893, stating that it had been served with process as garnishee, for the use of Kauffman, on June 22d, and could not, therefore, pay said rent to Buxbaum & Co. until its liability as garnishee for the use of Kauffman could be determined.\nThe Oakland Club was allowed, on July 31, 1893, to deposit the July rent with the clerk of the court, subject to the determination of the rights of the claimants to it.\nOn the next day, August 1, 1893, Buxbaum & Co., who had been summoned to appear in the case, filed their petition averring the assignment of the lease to them by Dunham, the judgment debtor, and asking that the July rent which had been paid into court, be paid to them.\nInterrogatories to the garnishee were filed on August 4, 1893, and the answers to them by the Oakland Club were filed August 9, 1893.\nOn August 28, 1893, the cause came on for hearing upon the demurrer which had been filed by Kauffman to the petition of Buxbaum & Co., upon the answer of the Oakland Club as garnishee, and upon the motion of John W. Kauffman for the appointment of a receiver.\nThe demurrer was sustained, and the petition of Buxbaum & Co., which asked that the rent for July be paid to it, was dismissed. They appealed.\nAn equitable right takes precedence of a subsequent garnishment. Gregg v. Savage, No. 4914, this term.\nBut here the garnishment was first.\nThe real question of permanent interest on this record, is whether rent to accrue is a subject of garnishment. The difficulty in the way is not that the rent is not due. The 19th section of the garnishment act provides for that in staying execution until twenty days after the debt garnished is due.\nBut the rent has not been earned. It will belong, unless otherwise disposed of or prevented, to the owner of the reversion when it becomes due.\nSome provision of the lease\u2014eviction under title paramount, or other cause may prevent the landlord ever having any interest in it.\nIt follows, that until the rent was earned there was nothing for the garnishee process to operate upon, and when it was earned and became an indebtedness to the landlord, it no longer was his. If it had remained his until it was due, the garnishment would have been effectual. If a judgment were entered under the 19th section, and the term passed before any rent became due, and then under the provisions of the lease, or by eviction, the rent stopped before it accrued, how could the tenant escape the judgment?\nBut the landlord has such a probability that rent may accrue as enables him to make an equitable assignment of it which will take effect if, and when it does accrue. Gregg v. Savage, No. 4914, this term.\nAs, in this case, such assignment was made before there was anything for the garnishee process to operate upon, the judgment of the Superior Court on demurrer dismissing the petition of the appellant was wrong, and it is therefore reversed and the cause remanded.\nOmitting fo aver that the indebtedness secured by the assignment had not been paid was no defect in the petition. 1. Chit. Pl., 243, et seq.", "type": "majority", "author": "Mr. Justice Gary" } ], "attorneys": [ "Cteob&e W. Plummer, attorney for appellants.", "Charles Alling, Jr., attorney for appellee." ], "corrections": "", "head_matter": "Buxbaum & Co. v. Dunham, for the use of Kauffman.\n1. Lease\u2014Assignment\u2014Transfer of an Equitable Right to Rent.\u2014 An assignment and delivery of a lease to a party transfers to him the equitable right to the rent.\n2. Garnishment\u2014Rent to Accrue\u2014Equitable Assignment.\u2014Where an assignment of a lease by the lessor is made before the rent becomes due, it will take effect as to such rent when it does accrue, and garnishee proceedings against the tenant, served previous to the assignment, will not affect it.\nMemorandum.\u2014Garnishment. Appeal from the Superior Court of Cook County. Heard m this court at the October term, 1898.\nReversed^ and remanded.\nOpinion filed January 11, 1894.\nThe statement of facts is contained in\u2019 the opinion of the court.\nCteob&e W. Plummer, attorney for appellants.\nCharles Alling, Jr., attorney for appellee." }, "file_name": "0240-01", "first_page_order": 236, "last_page_order": 239 }