Clymore v. Williams

77 Ill. 618

• Court: Illinois Supreme Court
• Decided: June 15, 1875
• Status: Published

Opinion

Mr. Chief Justice Scott

delivered the opinion of the Court:

Two errors appear in the record that are fatal to the present judgment. The suit was commenced in assumpsit, with an attachment in aid. There being no personal service on defendant, and no appearance, it was improper to award a general execution against the property of defendant. Young v. Campbell, 5 Gilm. 8.

It was also erroneous to award a special execution "against certain lands of defendant, for the reason, that what purports to be a levy under the attachment writ, was not signed bv the officer who had it to execute, or any one else. There was in fact no levy upon real estate, or any other property, so far as the present return shows.

There was service upon certain parties, as garnishees, but no proceedings seem to have been taken against either of them. It is indispensable, to give the court jurisdiction in attachment proceedings, where there is no personal service, it should appear the writ was either levied upon property, or served upon garnishees having effects, dioses in action or credits in their possession or power, belonging to defendant. Haywood v. Collins, 60 Ill. 328. Neither appears in the present record. No proceedings having been had against the garnishees. it can not be known whether-they had effects, dioses in action or credits in their possession or power, belonging to defendant.

On account of the errors indicated, the judgment will be reversed, and the cause remanded.

, Judgment reversed.