Grace v. Casey-Grimshaw Marble Co.

62 Ill. App. 149, 1895 Ill. App. LEXIS 404

• Court: Appellate Court of Illinois
• Decided: January 22, 1896
• Status: Published

Opinion

Mr. Justice Waterman

delivered the opinion of the Court.

Judgment was entered against William Grace, a garnishee, without his appearance, or service of any kind upon him. He afterward appeared and asked to have this judgment set aside, which motion the court overruled.

The judgment against Grace was void for want of jurisdiction over him, had service previously been had upon him, and he failed to appear or answer; a conditional judgment should have preceded a final judgment against him. Sec. 3 of Chap. 62, R. S.; Carter v. Lockwood, 15 Ill. App. 73; Carriker v. Anderson, 27 Ill. 358.

The void judgment against Grace was not validated by his motion to set the same aside. As the judgment against Grace is improper and must be reversed, that against Hyde must be reversed. A judgment is in this State a unit, and if bad as to one, is as to all. Black on Judgments, Sec. 211; Williams v. Chalfant, 82 Ill. 218; see Cooper v. McNeil & Higgins Co., 43 Ill. App. 350; Claftin v. Dunn, 129 Ill. 248.

The interpleader claimed the fund in controversy by virtue of an assignment by the principal debtor; this assignment was only for the surplus money due or to become due after the making of certain payments. The interpleader should, therefore, have alleged that there was such surplus and the amount thereof. The demurrer to the interpleader was properly sustained.

The judgment of the Superior Court is reversed and the cause remanded.