{ "id": 2450868, "name": "Joel W. Clark, for use, etc., v. First National Bank of Earlville", "name_abbreviation": "Clark v. First National Bank", "decision_date": "1897-09-20", "docket_number": "", "first_page": "601", "last_page": "607", "citations": [ { "type": "official", "cite": "71 Ill. App. 601" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "62 Ill. 50", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2606506 ], "opinion_index": -1, "case_paths": [ "/ill/62/0050-01" ] }, { "cite": "29 Ill. 315", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2453982 ], "opinion_index": -1, "case_paths": [ "/ill/29/0315-01" ] }, { "cite": "111 Ind. 148", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1353755 ], "opinion_index": -1, "case_paths": [ "/ind/111/0148-01" ] }, { "cite": "116 Ind. 160", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1370853 ], "opinion_index": -1, "case_paths": [ "/ind/116/0160-01" ] }, { "cite": "9 Pick. 167", "category": "reporters:state", "reporter": "Pick.", "case_ids": [ 2058494 ], "opinion_index": -1, "case_paths": [ "/mass/26/0170-01" ] }, { "cite": "81 Ill. 442", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2673819 ], "opinion_index": -1, "case_paths": [ "/ill/81/0442-01" ] }, { "cite": "36 Ill. 114", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5215153 ], "opinion_index": -1, "case_paths": [ "/ill/36/0114-01" ] }, { "cite": "137 Ill. 113", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5440492 ], "opinion_index": -1, "case_paths": [ "/ill/137/0113-01" ] }, { "cite": "50 Ill. 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App.", "case_ids": [ 5169863 ], "opinion_index": -1, "case_paths": [ "/ill-app/63/0313-01" ] }, { "cite": "31 Ill. 144", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 8499970 ], "opinion_index": -1, "case_paths": [ "/ill/31/0144-01" ] }, { "cite": "3 Scam. 133", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2471344 ], "opinion_index": -1, "case_paths": [ "/ill/4/0133-01" ] }, { "cite": "2 Gilm. 581", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2559036 ], "opinion_index": -1, "case_paths": [ "/ill/7/0581-01" ] }, { "cite": "53 Ill. 323", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5277315 ], "opinion_index": -1, "case_paths": [ "/ill/53/0323-01" ] }, { "cite": "43 Ill. 260", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5263789 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ill/43/0260-01" ] }, { "cite": "16 Ill. 43", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2588877 ], "opinion_index": -1, "case_paths": [ "/ill/16/0043-01" ] }, { "cite": "9 N. 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App. 222", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5115145 ], "opinion_index": -1, "case_paths": [ "/ill-app/51/0222-01" ] }, { "cite": "51 Ill. App. 407", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5112058 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ill-app/51/0407-01" ] }, { "cite": "61 Ill. App. 262", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5164807 ], "opinion_index": -1, "case_paths": [ "/ill-app/61/0262-01" ] }, { "cite": "129 Ill. 9", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2964083 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ill/129/0009-01" ] }, { "cite": "13 Ill. 221", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2583302 ], "opinion_index": -1, "case_paths": [ "/ill/13/0221-01" ] }, { "cite": "58 Ill. App. 675", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5088461 ], "opinion_index": -1, "case_paths": [ "/ill-app/58/0675-01" ] }, { "cite": "158 Ill. 272", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 6045801 ], "weight": 3, "opinion_index": -1, "case_paths": [ "/ill/158/0272-01" ] }, { "cite": "139 Ill. 538", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3005898 ], "opinion_index": -1, "case_paths": [ "/ill/139/0538-01" ] }, { "cite": "55 Ill. App. 266", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5097005 ], "opinion_index": -1, "case_paths": [ "/ill-app/55/0266-01" ] }, { "cite": "25 Ill. 63", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 443538 ], "opinion_index": 0, "case_paths": [ "/ill/25/0063-01" ] }, { "cite": "31 Ill. 144", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 8499970 ], "opinion_index": 0, "case_paths": [ "/ill/31/0144-01" ] }, { "cite": "51 Ill. App. 407", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5112058 ], "opinion_index": 0, "case_paths": [ "/ill-app/51/0407-01" ] } ], "analysis": { "cardinality": 677, "char_count": 12584, "ocr_confidence": 0.574, "pagerank": { "raw": 5.298132930532853e-08, "percentile": 0.33292269163182875 }, "sha256": "3de6223c1f180f0932d0a35d6e985a1fb167b127b626bc9d2c1f92214e1807ff", "simhash": "1:d3a5ae817a89ae7e", "word_count": 2224 }, "last_updated": "2023-07-14T21:20:26.715064+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Joel W. Clark, for use, etc., v. First National Bank of Earlville." ], "opinions": [ { "text": "He. Justice Weight\ndelivebed the opinion of the Couet.\nThis was a proceeding in garnishment by the appellant against appellee, First Hational Bank of Earlville, as garnishee. Judgment was rendered June 7, 1888, in the Circuit Court of Lee County, in favor of Charles Pierce, against Joel W. Clark, for \u00a71,048.28, and on the same day an execution was issued upon said judgment against the defendant therein. The execution went into the hands of the sheriff on the 9th day of June, 1888, and according to the indorsement thereon made by the sheriff, was served on the defendant therein, on the 18th day of June, 1888, and demand made. On the 15th day of September, 1888, the record shows the execution was filed with the clerk of the court, and after that date the following further indorsement appears to have been made upon the execution: \u201c I return this execution the 27th day of September, 1888, not satisfied, by order of the plaintiff\u2019s attorney. (Signed) W. H. Woodyalt, sheriff.\u201d\nThe garnishee proceedings in the case presented, are based upon the judgment, execution and return above mentioned.\nOn the trial, and without notice to Joel W. Clark, the execution debtor, the executors of the plaintiff in execution, and the beneficiaries in the proceeding, moved the court, and in this case, for leave of the court to the sheriff, who had made said return, then long out of office, to amend the return indorsed on said execution, in order that such return might show, in substance, that on the said 25th day of September, 1888, the said Joel W. Clark, defendant in execution, had no property in his county whereof he could make the amount of said execution, or any part thereof; which motion the court denied, and refused to grant leave to amend said return. The garnishee, appellee here, filed a special plea denying that execution had been returned \u201c No property found,\u201d to which the court sustained a demurrer. After the order sustaining said demurrer, the garnishee answered the interrogatories, and therein also set up, in substance, the same matter of its special plea denying the return of execution \u201cNo property found.\u201d On the final hearing the court entered an order dismissing the proceedings for want of jurisdiction, from which the appellants prosecute this appeal, assigning for error the refusal of the court to grant leave to the sheriff to amend the return of execution; the refusal of the court to hold certain propositions as law in the decision of the case, and that the court erred in dismissing the case for want of jurisdiction.\nWe shall consider these assignments of error in the order stated. We are of the opinion the court did not err in refusing leave to amend the return, for the reason the record of the original cause did not rest in this, and therefore the court had no power, in this proceeding, to make an order affecting the record in another cause, at that time not pending before it. Had such motion been made in the cause where the record of the return properly belonged, after notice to the execution debtor whose rights were to be affected, and the record of such motion made in that cause, and between the parties thereto, being brought to this court, the question would then, and only then, arise for decision.\nConcerning the error assigned, that the court refused to hold certain propositions of law, we 'think the appellants were not in any manner injured by the refusal, as they had no application to the issue on which the case was disposed of. Therefore the court properly refused all propositions of law, of which complaint is made.\nWe come now to the consideration of the propriety of the court\u2019s action in dismissing the case for want of jurisdiction. The statute (Sec. 1, Chap. 62, Starr & Curtis) provides that when a judgment shall be rendered by any court of record, and an execution against the defendant in such judgment shallbe returned by the proper officers, \u201cHo property found,\u201d on affidavit, etc., it shall be lawful to issue summons, etc.\nIt was held in Chanute et al. v. Martin, 25 Ill. 63: \u201c The obvious design of the law was only to authorize such proceeding after a failure, where a reasonable effort has been made in good faith to collect the money by the ordinary process of the law.' It was only intended to be allowed when there is no property subject to execution, or when it can not be found by reasonable efforts of the officer and plaintiff in execution.\u201d And in Mich. Cen. B. B. Co. v. Keohane, 31 Ill. 144: \u201c A party seeking the benefits of this provision must bring himself, substantially, within its provisions. * * * An execution must have been issued and returned \u2018 no property found,\u2019 to warrant the issuing of garnishee process, under this section. This is a statutory mode of obtaining execution after the means known to the common law have been employed and failed. And it can only-be resorted to after the requirements of the statute have been complied with, as conditions to issuing the process, Unless the return, in terms or substance, states that 6 no property is found,\u2019 it is insufficient.\u201d In the respect last above described it is likened unto a creditor\u2019s bill. Dunderdale v. Westinghouse Electric Co., 51 Ill. App. 407.\nIn the light of the statute and the decisions under it, there seems little reason for the contention that the return here presented is sufficient to entitle the process to issue. It is wanting in the essential element of the legal requirement that no property of the defendant was found. He may have had unlimited property and the return of the officer be also true.\nThe order of dismissal for want of jurisdiction may not have been, technically, the correct judgment, but in its final effect was right. The judgment of the Circuit Court will therefore be affirmed.", "type": "majority", "author": "He. Justice Weight" } ], "attorneys": [ "Chas. F. Preston and Clyde Smith, attorneys for appellant.", "Brewer & Straws, attorneys for appellee." ], "corrections": "", "head_matter": "Joel W. Clark, for use, etc., v. First National Bank of Earlville.\n1. Amendments\u2014Of the Records of a Case Not Pending Before the Court.\u2014A court has no power to make an order in a case, allowing an amendment of the record in another case not pending before it. The propriety of allowing the proposed amendment can only arise on motion made in the cause to which the record sought to be amended belongs, after notice to the party whose rights are to be affected.\n3. Propositions op Law \u2014Held Inapplicable and Properly Refused, \u2014This court decides that the trial court properly refused to hold the propositions of law presented by appellant, as such propositions had no application to the issue on which the case was disposed of.\n3. Garnishment\u2014When it May Issue.\u2014To warrant the issuing of garnishee process, there must be a return upon an execution against the judgment debtor, stating either in terms or in substance that no property is found.\nGarnishment.\u2014Appeal from the Circuit Court of Lee County; the Hon. James Shaw, Judge, presiding.\nHeard in this court at the May term, 1897.\nAffirmed.\nOpinion filed September 20, 1897.\nChas. F. Preston and Clyde Smith, attorneys for appellant.\nWhere the fact was that the sheriff had made demand seven days before he returned the writ, and was unable to find property to levy on, the court say that the plaintiff \u201c had a right to have the sheriff return the execution unsatisfied \u201d (Illinois M. I. Co. v. Graham, 55 Ill. App. 266, citing Russell v. Chicago T. and S. Bank, 139 Ill. 538), and that his return is sufficient to support a ca. sa., for \u201c The facts exist which show an exhaustion of the legal remedies, and such facts are not modified or affected by the direction of the creditor\u2019s attorney to return the execution unsatisfied.\u201d Huntington v. Metzger, 158 Ill. 272.\n\u201c A return of an execution unsatisfied means that the defendant has no property which the sheriff can levy upon; it is sufficient to ground a creditor\u2019s bill upon. * * * The return is evidence, because of a legal presumption that the sheriff did his duty upon process in his hands.\u201d Springer v. Puttkammer, 58 Ill. App. 675.\nIt is sufficient to sustain a creditor\u2019s bill or to authorize a suit against an indorser. Alexander v. Tams, 13 Ill. 221; Durand v. Gray, 129 Ill. 9; Thompson v. Yates, 61 Ill. App. 262.\n\u201c The statute relative to the filing of creditor\u2019s bills and that concerning the issue of garnishee process upon the return of an execution \u2018 Ho property found,\u2019 are so similar that the rule as to the return of execution in one case is to be applied to the other,\u201d and so, too, as to the return required to support a ca. sa. Dunderdale v. Westinghouse Electric Co., 51 Ill. App. 407; Huntington v. Metzger, 51 Ill. App. 222; S. C., 158 Ill. 272.\nThe application to amend was made upon proper proof, and in apt time. Spellmyer et al. v. Gaff, 112 Ill. 29; Chicago Planing Mill Co. v. Merchants\u2019 Nat. Bank, 86 Ill. 687.\nAnd the deputy who made the return was the proper person to amend it. Wilson v. Greathouse, 1 Scam. 174; Holeman v. Weil, 72 Ill. 502; O\u2019Conner v. Wilson, 57 Ill. 226.\nHor is it objectionable that the sheriff\u2019s term of office had \u2022 expired. Johnson v. Donnell, 15 Ill. 100; Morris v. Trustees, 15 Ill. 270; Stull v. Hance, 62 Ill. 52.\nThe general rule is that the return is amendable. S. & O., Yol. 1, 375, et seq.\nAnd the return, as amended, will relate back. Wilton Mfg. Co. v. Butler, 34 Me. 431; Welsh v. Joy, 13 Pick. 477; Freeman v. Paul, 3 Me. 260; Cogswell v. Mason, 9 N. H. 48.\nThe case at bar falls within the general rule.\nConceding, for the purpose of argument, under this second head of our brief, that the return as originally made did not show jurisdiction, we still contend that the lack of jurisdiction was only in appearance, and not in substance. The case is analogous to that df a sheriff\u2019s return of summons, or other first process, where from the return the service appears to be insufficient to give the court jurisdiction of the person. Tet the record may be amended to speak the truth. Turney v. Organ, 16 Ill. 43; Dunn v. Rodgers et al., 43 Ill. 260; Toledo, P. & W. Ry. Co. v. Butler, 53 Ill. 323; Montgomery v. Brown et al., 2 Gilm. 581.\nOr where the declaration fails to show jurisdiction in the court, it may be amended. Wakefield v. Goudy, 3 Scam. 133.\nFor the indorsement of return is not the fact, but the evidence of it. Spellmyer v. Gaff, 112 Ill. 29.\nBrewer & Straws, attorneys for appellee.\nAn indorsement on an execution by a sheriff that he returns the execution not satisfied by order of the plaintiff\u2019s attorney, is insufficient to give the court jurisdiction in garnishment. Michigan C. R. R. v. Keohane, 31 Ill. 144; Dunderdale v. Westinghouse Electric Co., 51 Ill. App. 407; Pecos I. & I. Co. v. Olson, 63 Ill. App. 313.\nA return \u201c F\u00edo property found,\u201d and a proper affidavit are essential to give the court jurisdiction. 1 S. & C. An. St., Ch. 62, Sec. 1; Chanute v. Martin, 25 Ill. 63; Gibbon v. Bryan, 3 Ill. App. 298; Pierce v. Wade, 19 Ill. App. 185.\nParol evidence is not admissible to contradict or modify the return of an officer. Wilson v. Greathouse, 1 Scam. 174; Botsford v. O\u2019Conner, 57 Ill. 72; O\u2019Conner v. Wilson, 57 Ill. 226; Harris v. Lester, 80 Ill. 307; Coughran v. Gutcheus, 18 Ill. 390; Rivard v. Gardner, 39 Ill. 125; Huntington v. Metzger, 158 Ill. 272.\nA ruling \"on a motion addressed to the discretion of the court will not be reviewed by an Appellate Court except for an abuse of that discretion. The amendment of a return by an officer after the lapse of a considerable time is addressed to the discretion of the court. Windett v. Hamilton, 52 Ill. 180; Thatcher v. Miller, 13 Hass. 270; Hovey v. Wait, 17 Pick. 196; Scruggs v. Scruggs, 46 Mo. 271; Freeman v. Paul, 3 Me. 260; 2 Freeman on Executions, Sec. 360.\nThe public may act on an official record, and an amendment will not be permitted to the detriment of the rights of third parties acquired on the strength of such records. Am. Exch. Nat. Bank v. Moxley, 50 Ill. App. 314; Woofers v. Joseph, 137 Ill. 113; McCormick v. Wheeler, 36 Ill. 114; Church v. English, 81 Ill. 442; Emerson v. Upton, 9 Pick. 167; 2 Freeman on Executions, Sec. 360.\nThe affidavit does not confer jurisdiction because it does not state that the execution was returned by the proper officer, i. e., the sheriff of the county where the debtor resided. McKinney v. Snider, 116 Ind. 160; Pouder v. Tate, 111 Ind. 148; Stickney v. Little, 29 Ill. 315; Durand & Co. v. Gray, Kingman & Collins, 129 Ill. 9; Rood on Garnishment, Sec. 251.\nAnd the amendment of the return is not the doing of a new act, but the furnishing evidence of an act done. Morris v. Trustees, 15 Ill. 270; Dunn v. Rodgers et al., 43 Ill. 260; Howell v. Albany C. Ins. Co., 62 Ill. 50." }, "file_name": "0601-01", "first_page_order": 599, "last_page_order": 605 }