{ "id": 835346, "name": "Emil Scheubert v. Eman F. Honel et al.", "name_abbreviation": "Scheubert v. Honel", "decision_date": "1894-10-29", "docket_number": "", "first_page": "313", "last_page": "315", "citations": [ { "type": "official", "cite": "152 Ill. 313" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "129 Ill. 9", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2964083 ], "opinion_index": 0, "case_paths": [ "/ill/129/0009-01" ] }, { "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": 255, "char_count": 4194, "ocr_confidence": 0.587, "pagerank": { "raw": 3.5267684265036353e-07, "percentile": 0.8840961384235143 }, "sha256": "4a327289afedbd67485967ae07622ba2974b14531f064b9f79814e67be05321c", "simhash": "1:0d635aede3aba789", "word_count": 706 }, "last_updated": "2023-07-14T18:36:00.671418+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Emil Scheubert v. Eman F. Honel et al." ], "opinions": [ { "text": "Mr. Justice Baker\ndelivered the opinion of the court:\nWe are disposed to concur with the reasoning of the Appellate Court in its opinion filed in this case, that appellant\u2019s bill was properly dismissed for the reason that there had been no exhausting of his remedy at law by the issuance of an execution and a proper return thereof by the sheriff. It has been the uniform doctrine of this court that, as we said in Russell v. Chicago Trust and Savings Bank., 139 Ill. 538, in order to entitle the complainant in a creditor\u2019s bill to a decree, it must appear that he has \u201cexhausted 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\nThe allegations in the bill in relation to the issuing and return of execution were not admitted by appellees in the pleadings. It was therefore incumbent upon appellant to prove them. The return of the sheriff endorsed on the execution failed to show that appellant had exhausted his legal remedies. On the contrary, it plainly appeared from the endorsement of the direction of appellant\u2019s attorney to the sheriff, and the return of the latter, that the sheriff had made no effort whatever to collect the judgment, but that the return on the execution was in substance the act of appellant\u2019s attorney, and that in making the return the sheriff exercised no responsibility whatever. It must be shown that the execution has been returned by the sheriff, unsatisfied, by reason of his inability to find property whereon to levy, (Durand v. Gray, 129 Ill. 9 ; Russell v. Chicago Trust cond Savings Bank, supra,) whereas, in the case at bar, it plainly appeared from the attorney\u2019s instructions endorsed upon the writ, and the sheriff\u2019s return, that the execution had been returned unsatisfied merely because the sheriff had been instructed to make such return. To be sure, an execution is the process of the judgment creditor, and is subject to his control. Still, he cannot so control it as to make the statute a nullity.\nThe judgment of the Appellate Court was right, and it is therefore affirmed.\nJudgment affirmed.", "type": "majority", "author": "Mr. Justice Baker" } ], "attorneys": [], "corrections": "", "head_matter": "Emil Scheubert v. Eman F. Honel et al.\nFiled at Ottawa October 29, 1894.\n1. Creditor\u2019s bill\u2014remedies at law must be exhausted. Before a creditor\u2019s bill will lie all legal remedies must be exhausted, and proper effort made to collect the judgment by execution, and unless this appears the bill will be dismissed.\n2. Same\u2014execution returned by order not sufficient. Return of an execution by order of plaintiff\u2019s attorney, and not because no property was found, is not a sufficient basis for a creditor\u2019s bill. \u25a0\nAppeal from the Appellate Court for the First District ;\u2014heard in that court on appeal from the Superior Court of Cook county; the Hon. William G. Ewing, Judg'e, presiding.\nA judgment by confession, under a warrant of attorney, was entered in favor of appellant, against appellee Eman F. Honel, 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. The direction and the return appeared on the back of the execution, and are as follows :\n\u201cThe sheriff will return this writ no property found and no part satisfied, forthwith.\n\u201cDated February 21,1887.\nJas. E. Cross, Att\u2019y for Plaintiff.\u201d\n\u201cThis execution returned no property found and no part satisfied, this 21st day of February, 1887.\nCanute E. Matson, Sheriff.\nBy C. W. Peters, Deputy.\u201d\nNo other execution appears ever to have been issued on said judgment. Afterward, appellant filed his credit- or\u2019s bill in the Superior Court of Cook county, based upon said judgment and the returned execution. The cause was heard in said court at the February term thereof, 1893, and the bill dismissed for want of equity. Appellant thereupon appealed to the Appellate Court for the First District, where the decree of the Superior Court was affirmed, and now asks this' court to reverse the finding of the Appellate Court.\nMr. James A. Peterson, for the appellant.\nMessrs. Cross & Jindrich, for the appellees." }, "file_name": "0313-01", "first_page_order": 313, "last_page_order": 315 }