#### Commercial National Bank v. Kirkwood, Miller & Co.

1. Garnishment—Judgment Creditor of Partnership Can Not Garnish Debt Owing to One Partner.—A judgment creditor of a partnership or of two joint judgment debtors, can not, by garnishment, reach a debt due to one only of the partners, or owing to one only of the joint judgment debtors.

2. Same—Contracts of Novation.-—Where A, for a valuable consideration, promises B to pay money to C upon a debt B owes to C, and C has notice of the arrangement, consents thereto and accepts A as his debtor for such sum, C will be entitled to payment from A, as against another creditor of B, who afterward garnishees A.

Garnishment.—Appeal from the Circuit Court of Peoria County; the Hon. Leslie D. Putekbaugh, Judge, presiding. Heard in this court at the May term, 1899.

Affirmed.

Opinion filed October 12, 1899.

*236McCulloch & McCulloch and Irwin & Slemmons, attorneys for appellants.

Matthews & Gri&sby and A. G. Craweord, attorneys for appellees. '

Mr. Justice Dibell

delivered the opinion of the court.

The Commercial National Bank and the Bank of Commerce, of Peoria, Illinois, being creditors of the firm of Kirkwood, Miller & Co., began attachment suits "against said firm, in the Circuit Court of Peoria County. In the suit brought by the Commercial National Bank garnishee summons was, on January 7, 1893, served by the sheriff of Pike county upon Jefferson Orr and Ella M. Orr, his wife. They did not owe said firm, but there had been certain dealings between them and Allen C. Kush, a member of the firm of Kirkwood, Miller & Go., which gave rise to an indebtedness which the bank, by said garnishee process, sought to reach and apply upon its demand against the firm. These dealings began December 28, 1892, by the sale of certain lands from Kush to Jefferson Orr and Ella M. Orr, respectively. On December 30, 1892,, said firm executed, and on December 31st delivered, an assignment of the firm property for the benefit of creditors. On January 2, 1893, a new agreement was made between Kush and Jefferson Orr which clearly eliminated Ella M. Orr from the indebtedness arising out of said dealings, and left Jefferson Orr the only person liable to any one therefor. By the instrument of January 2, 1893, Jefferson Orr agreed with Kush to pay Benjamin Newman and several other creditors of Kush who were therein named, certain specific sums therein stated, provided the title to the land bought of Kush by himself and wife, on December 28, 1892, was perfect. While this language was general, the only imperfection in the minds of the parties arose out of the assignment of Kirkwood, Miller & Go. Orr had learned of the assignment, but had not seen the instrument, and was not sure it did not convey the individual property of Kush. It is not claimed bj^ any party to this suit that said assignment operated upon the individual *237property of Rush. Orr soon ascertained it did not, and testified he would then have paid the parties named in said instrument if he had not been served with garnishee summons as above stated; after which, for his own protection, he delayed payment till the decision of this case. Therefore the possible defect in title the parties had in mind did not exist; and the promise to pay is in fact absolute and unaffected by the condition. The beneficiaries in said instrument of January 2, 1893, sought to secure the enforcement of their rights by bill in chancery, but in Commercial National Bank v. Newman, 55 Ill. App. 534, and Newman v. Commercial National Bank, 156 Ill. 530, jurisdiction in equity was denied on the ground the jurisdiction of the Circuit Court of Peoria County in said garnishee suit-, whioh first attached, was adequate to protect and enforce the legal rights and equities of all the parties. The garnishees then answered. Newman and the other beneficiaries under said instrument of January 2, 1893 (except two who had been paid), intervened in the garnishee proceeding, and filed petitions claiming the fund. The Bank of Commerce was notified, and came in and set up its claim. The cause was tried without a jury and the money was ordered paid to said interveners, Rewman and others. This court affirmed the judgment in Commercial National Bank v. Kirkwood, 68 Ill. App. 116, but was reversed by the Supreme Court in 172 Ill. 563. The reversal was for error of the trial court in passing upon propositions of law presented, viz., in refusing to hold that the instrument of January 2, 1893, did not constitute an assignment of the fund to the beneficiaries therein named, and in refusing to hold “ that in order to entitle the interpleaders to recover the moneys it was necessary for them to show an acceptance of the terms of said agreement and the acceptance of Jefferson Orr as their creditor (debtor) for the respective amounts named in said contract, prior to the service of the garnishee process.” The record then before the court did not show an acceptance by all the beneficiaries, and did not show whether the acceptance of any of them was before the service of the *238garnishee process. Upon another trial in the Circuit Court after the cause was remanded much additional evidence was introduced upon the subject of the fact and date of such acceptance by the beneficiaries. The court again entered judgment in their favor, and the Commercial National Bank now prosecutes this appeal therefrom, and the Bank of Commerce has assigned cross-errors.

We are of opinion the evidence in the present record establishes that the several interpleaders had notice of said arrangement and consented to and accepted it, and accepted Orr as their debtor for the respective sums he had promised to pay them by said instrument, and that this occurred as to each beneficiary before the service of the garnishment process upon the Orrs. Under the principles laid down by the Supreme Court in this case in 172 Ill. 563, the right of the petitioners became perfect upon such acceptance, and the liability of Jefferson Orr to said beneficiaries became fixed, and no longer subject to revocation by Bush. The purpose to accept and the actual consent to the arrangement and acceptance of Orr as their debtor, and reliance upon him, was put in different language and evidenced by different acts by the various beneficiaries. But that acceptance did not need to be in writing nor by any particular form of words. The judgment, therefore, was correct. The case last cited settles the principles of law governing the parties, and the rulings of the trial court upon the propositions of law presented at the last trial are in the main in harmony therewith; and if, in one or two respects, said rulings are slightly incorrect, yet the decision is right, and should be affirmed.

It may further be said that Bush had an equitable right to have his individual creditors paid first out of his individual property before firm creditors should be permitted to resort thereto; and in entering into the arrangement evidenced by the instrument of January 2, 1893, Bush was endeavoring to secure that benefit for his individual creditors. There was nothing fraudulent or collusive in his course, nor did it inflict any wrong upon the creditors of *239the firm. No reason exists why we should split hairs over the particular words used by each beneficiary in accepting the arrangement, in order to defeat what Rush had a right to do for his individual creditors.

The judgments of the Commercial National Bank and of the Bank of Commerce are against the firm of Kirkwood, Miller & Co. Orr is not and never has been indebted to Kirkwood, Miller & Co. The claim of said banks is only that he owes Rush, one of the members of said firm.

It was settled in Siegel, Cooper & Co. v. Schueck, 167 Ill. 522, and in C. & N. W. R. R. Co. v. Scott, 174 Ill. 413, that a judgment creditor of a partnership or of two joint judg- ' ment debtors, can not, by garnishment, reach a debt due one only of the partners, or owing to one only of the joint judgment debtors. The legal reasons for the rule are fully stated in said opinions. Under these decisions the true title of this garnishee proceeding is Kirkwood, Miller & Co. for the use of the Commercial National Bank v. Jefferson Orr and Ella M. Orr; and as neither of the Orrs owe said firm, the garnisheeing creditors can not recover. It is urged that this point can not now be raised, and that the right of the bank to recover if said promise by Orr was not accepted by the beneficiaries is res adjudie,ata by virtue of the absence of reference to the rule above stated in the decision in 172 Ill. That was an appeal by the bank. The court below had determined the controversy for the beneficiaries. They had no occasion to assign cross-errors. That record is not before us, nor the propositions of law requested at that trial, nor the briefs there filed. We can not know whether or not the point now under discussion was then raised. We can not say from the record before us that any decision has been made which bars the beneficiaries from now availing of that defense.

The judgment is affirmed.

Mr. Justice Higbee took no part in the decision of this case.