Self v. Schoenfield

60 Ill. App. 65, 1894 Ill. App. LEXIS 634

Opinion

Hr. Justice Boggs

delivered the opinion of the Court.

The office of the execution which the sheriff held against the appellees was to collect the amount due the plaintiffs in the judgment upon which it issued. The command of the process did not extend to the money paid to extinguish the homestead estate of the appellees. That sum it was the duty of the sheriff to pay to the appellees. He held it as so much money had and received to their use. It was not in the custody of law and he was amenable to the process of garnishment. Pierce v. Carlton, 12 Ill. 358; Lightner v. Steingel, 33 Ill. 510; Weaver v. Davis, 47 Ill. 235. It was clearly the duty of the appellant to respond to the command of said writs of garnishment and to abide the judgment and orders of the court made therein.

Whether the funds he held should be regarded as representing the homestead estate of the appellees, and whether, if so regarded, the exemption did not hold good as against the garnishing creditors, because the indebtedness due to them was for the purchase or improvement of the homestead property, or perhaps for other reasons, were questions that could not be settled in the proceeding by way of a motion against the appellant, for the reason that such creditors were not parties.

It was manifestly unjust to the sheriff to rule him to pay the money to the appellees and assume the burden of defending against the garnishing creditors and of upholding' the claim of the appellees to the fund at his peril. The appellees should have been required to defend their right to the fund in the garnishment cases and the motion for a rule absolute against the sheriff should "have been denied. The judgment must be and is reversed.