Dearborn Laundry Co. v. Chicago & Alton R. R.

55 Ill. App. 438, 1894 Ill. App. LEXIS 449

• Court: Appellate Court of Illinois
• Decided: December 6, 1894
• Status: Published

Opinion

Mr. Presiding Justice Waterman

delivered the opinion of the Court.

In order to entitle a judgment creditor to the benefit of garnishee proceeding, it is necessary that execution shall have been issued upon the judgment and returned no property found. Sec. 1, Chap. 62, Revised Statutes.

A justice of the peace has only such jurisdiction as the statute confers. Without a compliance with the statute, a justice has no jurisdiction to issue garnishee process. M. C. Ry. Co. v. Keohane, 31 Ill. 144; Gibbon v. Bryan, 3 Ill. App. 298.

A judgment entered by a justice of the peace, based upon an admission by the defendant of an amount due, is not a judgment by confession. A confession of judgment is more than an acknowledgment that a certain amount is justly due; it is a consent to'the entry of judgment. Goddard v. Fisher, 23 Ill. App. 365; Campbell v. Randolph, 13 Ill. 313; Elliott v. Daiber, 42 Ill. 467.

Appellee was therefore entitled to appeal from the judgment the justice improperly entered. The form of execution not having the signature of the justice thereon, was but a form, although delivered to and acted upon by an officer as an execution.

This paper, with the return thereon, was certainly as much a part of the “ record ” of the court as the entry made by the justice in his docket. And the so-called execution and return were properly admitted in evidence. Wooters v. Joseph, 137 Ill. 117; Greenleaf on Evidence, Vol. 1, Sec. 521; Welsh v. Joy, 13 Pick. 477.

FTo execution having been issued and returned no property found, the plaintiff was properly non-suited.

The judgment of the Circuit Court is affirmed.