Bates v. Kaestner

69 Ill. App. 620, 1897 Ill. App. LEXIS 145

• Court: Appellate Court of Illinois
• Decided: March 29, 1897
• Status: Published

Opinion

Mr. Justice Gary

delivered the opinion of the Court.

It is necessary to consider one point only in deciding this case.

The defendants in error commenced an attachment suit against the plaintiff in error. They found no debtor to him to garnishee, and levied upon no property. He was not summoned on the writ. There was therefore no jurisdiction acquired over him or his property by the suit. West. v. Schnebly, 54 Ill. 523.

Even when coming in question collaterally, there is no presumption in favor of the jurisdiction in attachment cases without personal service. Firebaugh v. Hall, 63 Ill. 81; Drake on Att., Sec. 85.

The defendants in error endeavor to support the jurisdiction upon facts as follows: Two persons were summoned as garnishees, who answered that they owned an undivided half of two dredges, of which, so far as they were informed, the plaintiff in error owned the other undivided half, and that the two dredges were in the Chicago river.

Ho allusion to any possession by anybody, or to any use being made, of the dredges is in the answer. There is as much reason to guess that Bates was in possession of them as to guess that the garnishees ivere, and upon neither guess can jurisdiction stand.

The dredges were not levied upon, but the defendants in error seem to have proceeded upon the assumption that Sec. 20 of Ch. 62, Garnishment, applied, and incorporated in their judgment an award of special execution for the sale of an undivided half of the dredges.

The judgment is void, but that is not an obstacle to reversing it upon error. Goodsell v. Boynton, 1 Scam. 555; Archer v. Ross, 2 Scam. 303.

The judgment is reversed and the cause remanded.