Pierson v. Robb

Illinois Supreme Court

Pierson v. Robb

4 Ill. 139

DecidedDecember 15, 1841

StatusPublished

This text of 4 Ill. 139 (Pierson v. Robb) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pierson v. Robb, 4 Ill. 139 (Ill. 1841).

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Opinion

Treat, Justice,

delivered the opinion of the Court :

This was originally a proceeding by attachment, in the Morgan Circuit Court, in which Robb was plaintiff, and one Giberson was defendant. Stacy & Rapp, Alexander & King, Nicholas Milburn, Ross & Freeman, William Gilham, John E. Denny, Keener & Chambers, English & Monroe, Jacob Strawn, Joseph Duncan, John Seibs, and the appellants interpleaded, claiming the property attached. The cause was tried by the Court, upon an agreed state of facts, substantially as follows: Giberson, the debtor, absconded from Morgan county, on the night of the 19th of September, 1841, with the intention of departing from the State, taking with him all the property in question, but the corn and oats. Early on the morning of the 20th of September, Robb sued out his attachment from the Circuit Court, and Stacy & Rapp, Alexander & King, Milburn, and Ross & Freeman, severally obtained attachments from a justice of the peace. The deputy sheriff and constable, thereupon, started in pursuit of Giberson, with these attachments, and in the evening of the same day, overtook him in Pike county, and seized and attached all the property in dispute, but the corn and oats. On the same day, the appellants sued out attachments from the Circuit Court, and put them in the hands of the ‘sheriff, but he did not pursue Giberson. Subsequently, English & Monroe, Keener & Chambers, and Denny obtained attachments from a justice of the peace, and Strawn one from the Circuit Court. These attachments, together with those obtained by the appellants, and an execution in favor of Gilham, were, upon the return of the deputy sheriff and constable from Pike county, levied on the property taken by them. All of the attachments and the execution were levied on the corn and oats left by Giberson, in Morgan county. Duncan made his distress warrant, under which his bailiff attached the corn and oats. The plaintiffs in the attachments first issued by the justice of the peace, obtained judgments on their demands, on the 3.0th of September, on personal service on Giberson. The plaintiffs in the attachments subsequently issued by the justice of the peace, obtained judgments on the 1.1th of October. At the October term of the Morgan Circuit Court, Seibs recovered judgment against Giberson in an appeal suit. The plaintiffs in the attachments issued from the Circuit Court, were all entitled to judgment at the October term. The parties agreed that the Circuit Court might decide upon their respective rights to the property attached, and that the same should be sold, and the proceeds applied accordingly, subject to an appeal to this Court. The Circuit Court decided that Duncan was entitled to be paid out of the proceeds of the corn and oats, the amount of bis rent; that Robb, Stacy & Rapp, Alexander & King, Milburn, and Ross & Freeman were entitled to the proceeds of the property taken, except the corn and oats, until their claims were satisfied, the balance of the proceeds of the whole property to be divided among the other parties. An appeal is taken, and the appellants assign for error, the decision of the Court in giving preference to the claims of Robb, Stacy & Rapp, Alexander & King, Milburn, and Ross & Freeman, over the claims of the appellants.

The twenty-fourth section of the attachment act

(1) provides, that where several attaching creditors obtain judgments at the same term of the Court, on attachments issued against the same debtor, and returnable to the same term, the judgments shall be paid pro rata, out of the proceeds of the property attached. Under that act, the sheriff or constable in the service of the attachment, as in other process, was confined to the county in which the attachment issued, and if the creditor desired to attach other property-of the debtor, in a different county, he could only do so by obtaining an attachment directed to the sheriff of the county in which the property was to be found, as provided by the thirty-second section of the same act. To obviate in some respects this difficulty, the “ Act concerning Attachments,” approved January 31, 1840, (2) was passed, providing that where the defendant shall be in the act of absconding with his goods and effects, it shall be lawful for the officer in whose hands any attachment is placed, to pursue him to any county in the State, and to levy upon and take the goods and chatties of the defendant, and bring them back to the county from whence the attachment issued. Under this law the deputy sheriff and constable pursued Giberson to Pike county, attached his property, and brought it back to Morgan county.

The question now arises, did the plaintiffs in these attachments, by reason of their superior diligence, gain any preference over the appellants, whose attachments were issued subsequently, and not levied on the property in question till after it was brought back to Morgan county. If the property had been originally levied on in Morgan county, there is no doubt but the appellants would be entitled to a pro rata division of the proceeds, with the other creditors. We are of the opinion, that the creditors who pursued Giberson into Pike county, gained a complete lien, to the extent of their demands, upon the property there attached. The other attachments were no lien upon the property in Pike county, nor could they be made a lien upon it, unless in the hands of an officer in that county, and levied by him. When brought back to Morgan county, the property could only be attached subject to the prior lien acquired in Pike county. It is but fair to presume that Giberson was pursued at the instance of the creditors who have been preferred, and not by the mere volition of the officers. The preference given them is but the reward for their superior vigilance. The other creditors, by sleeping upon their rights, while the former were pursuing the debtor, and attaching his property in a distant county, have no good reason to complain of the preference thus given. The judgment of the Circuit Court is, therefore, affirmed with costs.

Judgment affirmed.

R. L. 93; Gale's Stat. 71.

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Treat, Justice,

delivered the opinion of the Court :

This was originally a proceeding by attachment, in the Morgan Circuit Court, in which Robb was plaintiff, and one Giberson was defendant. Stacy & Rapp, Alexander & King, Nicholas Milburn, Ross & Freeman, William Gilham, John E. Denny, Keener & Chambers, English & Monroe, Jacob Strawn, Joseph Duncan, John Seibs, and the appellants interpleaded, claiming the property attached. The cause was tried by the Court, upon an agreed state of facts, substantially as follows: Giberson, the debtor, absconded from Morgan county, on the night of the 19th of September, 1841, with the intention of departing from the State, taking with him all the property in question, but the corn and oats. Early on the morning of the 20th of September, Robb sued out his attachment from the Circuit Court, and Stacy & Rapp, Alexander & King, Milburn, and Ross & Freeman, severally obtained attachments from a justice of the peace. The deputy sheriff and constable, thereupon, started in pursuit of Giberson, with these attachments, and in the evening of the same day, overtook him in Pike county, and seized and attached all the property in dispute, but the corn and oats. On the same day, the appellants sued out attachments from the Circuit Court, and put them in the hands of the ‘sheriff, but he did not pursue Giberson. Subsequently, English & Monroe, Keener & Chambers, and Denny obtained attachments from a justice of the peace, and Strawn one from the Circuit Court. These attachments, together with those obtained by the appellants, and an execution in favor of Gilham, were, upon the return of the deputy sheriff and constable from Pike county, levied on the property taken by them. All of the attachments and the execution were levied on the corn and oats left by Giberson, in Morgan county. Duncan made his distress warrant, under which his bailiff attached the corn and oats. The plaintiffs in the attachments first issued by the justice of the peace, obtained judgments on their demands, on the 3.0th of September, on personal service on Giberson. The plaintiffs in the attachments subsequently issued by the justice of the peace, obtained judgments on the 1.1th of October. At the October term of the Morgan Circuit Court, Seibs recovered judgment against Giberson in an appeal suit. The plaintiffs in the attachments issued from the Circuit Court, were all entitled to judgment at the October term. The parties agreed that the Circuit Court might decide upon their respective rights to the property attached, and that the same should be sold, and the proceeds applied accordingly, subject to an appeal to this Court. The Circuit Court decided that Duncan was entitled to be paid out of the proceeds of the corn and oats, the amount of bis rent; that Robb, Stacy & Rapp, Alexander & King, Milburn, and Ross & Freeman were entitled to the proceeds of the property taken, except the corn and oats, until their claims were satisfied, the balance of the proceeds of the whole property to be divided among the other parties. An appeal is taken, and the appellants assign for error, the decision of the Court in giving preference to the claims of Robb, Stacy & Rapp, Alexander & King, Milburn, and Ross & Freeman, over the claims of the appellants.

The twenty-fourth section of the attachment act

(1) provides, that where several attaching creditors obtain judgments at the same term of the Court, on attachments issued against the same debtor, and returnable to the same term, the judgments shall be paid pro rata, out of the proceeds of the property attached. Under that act, the sheriff or constable in the service of the attachment, as in other process, was confined to the county in which the attachment issued, and if the creditor desired to attach other property-of the debtor, in a different county, he could only do so by obtaining an attachment directed to the sheriff of the county in which the property was to be found, as provided by the thirty-second section of the same act. To obviate in some respects this difficulty, the “ Act concerning Attachments,” approved January 31, 1840, (2) was passed, providing that where the defendant shall be in the act of absconding with his goods and effects, it shall be lawful for the officer in whose hands any attachment is placed, to pursue him to any county in the State, and to levy upon and take the goods and chatties of the defendant, and bring them back to the county from whence the attachment issued. Under this law the deputy sheriff and constable pursued Giberson to Pike county, attached his property, and brought it back to Morgan county.

The question now arises, did the plaintiffs in these attachments, by reason of their superior diligence, gain any preference over the appellants, whose attachments were issued subsequently, and not levied on the property in question till after it was brought back to Morgan county. If the property had been originally levied on in Morgan county, there is no doubt but the appellants would be entitled to a pro rata division of the proceeds, with the other creditors. We are of the opinion, that the creditors who pursued Giberson into Pike county, gained a complete lien, to the extent of their demands, upon the property there attached. The other attachments were no lien upon the property in Pike county, nor could they be made a lien upon it, unless in the hands of an officer in that county, and levied by him. When brought back to Morgan county, the property could only be attached subject to the prior lien acquired in Pike county. It is but fair to presume that Giberson was pursued at the instance of the creditors who have been preferred, and not by the mere volition of the officers. The preference given them is but the reward for their superior vigilance. The other creditors, by sleeping upon their rights, while the former were pursuing the debtor, and attaching his property in a distant county, have no good reason to complain of the preference thus given. The judgment of the Circuit Court is, therefore, affirmed with costs.

Judgment affirmed.

R. L. 93; Gale's Stat. 71.

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4 Ill. 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pierson-v-robb-ill-1841.