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171 207 181 590

171 207 185 586

JAMES A. KIRK et al. v. THE ELMER H. DEARTH AGENCY

and THE NEW YORK MORNING JOURNAL ASS'N V. SAME.

Opinion filed December 22, 1897Rehearing denied February 15, 1898.

1. ATTACHMENT—court must have jurisdiction of attachment defendant to render judgment against garnishee. In attachment the court must have jurisdiction to render judgment against the attachment defendant, in order to pronounce judgment against the garnishee, as the judgment against the former is the basis for a judgment against the latter.

2. SAME-garnishee may question jurisdiction of court to enter judgment against attachment defendant. A garnishee may, on appeal, inquire into the validity of the antecedent proceedings by which the court acquired jurisdiction to pronounce judgment against the attachment defendant, but he cannot complain of mere irregularities which concern only the attachment defendant.

3. SAME-Practice act does not control practice in attachment cases. The requirements of the Practice act do not control the practice in attachment cases in matters wherein the Attachment act has made different provisions.

4. SAME-suit need not be begun nor defendant served ten days before return term. An attachment suit need not be begun nor the defendant be served with process ten days before the term at which the writ is returnable, in order to entitle the plaintiff to a judgment at the return term.

5. SAME-publication of notice in attachment may be completed after beginning of return term. Where the first notice in attachment is published before the first day of the term to which the writ is returnable, the service by publication may be completed after the beginning of the return term.

6. SAMEwhen court may render judgment by default at return term. Where an attachment writ is issued and the first notice to the nonresident defendant published before the first day of the return term, the declaration may be filed after the beginning of the return term; and if there is no appearance, judgment by default may be rendered ten days after the third notice is published.

Kirk v. The Elmer H. Dearth Agency, 68 Ill. App. 468, affirmed.

APPEAL from the Appellate Court for the First District;-heard in that court on appeal from the Superior Court of Cook county; the Hon. FARLIN Q. BALL, Judge, presiding.

REMY & MANN, for appellants James A. Kirk et al.:

The attachment suit not having been begun ten days before the first day of the December term, the court was without jurisdiction to do anything at such term except to continue the case until the next term. There is no express provision in the Attachment act as to when or to what term a writ of attachment shall be returnable. Hecht v. Feldman, 153 Ill. 396.

The declaration in attachment cases must be filed ten days before the first day of the term, as required by section 8 of the Practice act then in force, and found on page 414 of the Revised Statutes of 1815. Craft v. Turney, 25 Ill. 324; White v. Hogue, 18 id. 150; Collins v. Tuttle, 24 id. 623; Stoddard v. Miller, 29 id. 292.

NEWMAN, NORTHRUP & LEVINSON, and WILLIAM E. O'NEILL, for appellants the New York Morning Journal Association et al.:

Appellee's judgment was void because the Superior Court never obtained jurisdiction over the defendant, either by personal service or by due publication, as required by statute. Appellee does not base the validity of its judgment on personal service, but relies upon an alleged service by publication. The service by publication is fatally defective for two reasons: (a) the publication notice commanded the defendant to appear at a premature term and at a time impossible for the defendant to appear; (b) the notice mailed by the clerk required the defendant to appear at a time seven days prior to the mailing of the notice.

Judgment on defective service by publication is absolutely void, and subject to attack collaterally. Haywood v. Collins, 60 Ill. 328.

The requirement that notice shall be published and a copy thereof mailed to the residence of the defendant, is that he may be informed of the pendency of the suit, so as to appear and defend the same if he sees fit. Parker v. Sheller, 60 Ill. App. 621.

A void judgment may be attacked collaterally or vacated at a subsequent term. 1 Black on Judgments, secs. 306, 307.

TENNEY, MCCONNELL & COFFEEN, for appellee:

Judgment may be recovered, under the Attachment act, although the suit is brought less than ten days before the return term.

Practice in attachment cases cannot conform to the practice under the general Practice act, in cases where the requirements of the Attachment act are different from those in the other act, either in terms or spirit. Field v. Shoop, 6 Ill. App. 445; Lawver v. Langhans, 85 Ill. 138.

An attachment writ may be made returnable to a term beginning less than ten days from the date of the writ. Mechanics' Savings Inst. v. Givens, 82 Ill. 157.

Mr. JUSTICE MAGRUDER delivered the opinion of the court:

On Saturday, November 30, 1895, Michael Doran commenced an attachment suit in the Superior Court of Cook county against the Elmer H. Dearth Agency, a corporation, to recover the sum of $17,708.22. The attachment writ was made returnable to the December term, A. D. 1895, of said court, which began on Monday, December 2, 1895, and was served upon the appellants, composing the firm of James A. Kirk & Co., as garnishees, on the day of its issue. No personal service was had upon the defendant, the Elmer Dearth Agency. Notice was at once given by publication, the first publication being on November 30, 1895, the second on December 7, 1895, and the third on December 14, 1895. On December 9, 1895, a copy of said notice was mailed by the clerk of the court to the de. fendant. On December 10, 1895, Doran, plaintiff in the attachment suit, filed his declaration in assumpsit. On December 26, 1895, judgment by default for $17,708. 22 in favor of Doran was taken against the Elmer H. Dearth Agency, it having failed to appear.

On January 6, 1896, the appellants as garnishees filed their answer admitting an indebtedness of $7434.53 to the agency, the attachment defendant, less costs and attorneys' fees, and setting up the service upon them as garnishees of attachment writs in thirty-one other cases commenced to the January term, 1896. There was a traverse of the answer of appellants by Doran. On June 5, 1896, a trial of the issue presented by said answer and traverse was had before the court without a jury. At the outset of the trial appellants objected to a hearing upon the alleged ground that there was no valid judgment against the attachment debtor, claiming that the judgment by default rendered against the agency on December 26, 1895, was void. Ruling upon the objection was reserved, and subsequently the court found, that the sum of $8375.42 was due from the appellants, as garnishees, to the agency, the attachment debtor. On July 11, 1896, motions for new trial and in arrest of judgment were overruled, and judgment for $8375.42 and costs of suit was rendered against appellants, as garnishees, in favor of the Elmer H. Dearth Agency, for the use of Michael Doran, and such other attaching creditors as were entitled to pro rata shares therein. The judgment thus rendered against the garnishees was taken by appeal to the Appellate Court and there affirmed. The present appeal by them is prosecuted from such judgment of affirmance.

The New York Morning Journal Association and other creditors commenced attachment suits in the same court against said agency in December, 1895, and issued writs of attachment returnable to the January term, 1896. default was entered against the agency in favor of said association on January 14, 1896, and judgments were entered in favor of two other creditors, who are appellants herein, on the 8th and 10th days of January, 1896, respectively. These creditors caused the same garnishees to be served in their attachment suits, who were served in Doran's suit, and filed petitions in the latter suit, making the record and files therein parts of their petitions.

The petitions so filed alleged that the judgment entered in favor of Doran against the agency on December 26, 1895, was null and void for want of jurisdiction in the court to render it, and that the service, alleged to have been made by publication and mailing of notice, was void. The petitions prayed, that said judgment in favor of Doran be vacated and set aside, and that an order be entered declaring the petitioners to be entitled to share pro rata in the fund brought into court by garnishment.

Michael Doran filed. general demurrers to the petition of the New York Journal Association and others. The court sustained the demurrers to the petitions, and dismissed the same, and denied the prayers for relief, finding that Doran was entitled to the funds attached and garnished, and rendering judgment against the garnishees. To this action of the court the petitioners severally excepted, and prayed appeals to the Appellate Court, which has affirmed the judgment of the Superior Court. From such judgment of affirmance petitioners prosecute their further appeal to this court.

The appeal prosecuted by the garnishees, James A. Kirk & Co., and the appeal prosecuted by the petitioners, the New York Journal Association and others, have, by stipulation and order of court, been heard together in this court, and have been taken as one case.

The same question is presented in both proceedings. That question is, whether or not the judgment for $17,708.22, entered on December 26, 1895, in favor of Michael Doran and against the Elmer H. Dearth Agency, was null and void for want of jurisdiction in the court which rendered it. There can be no doubt as to the right of the appellants, who were garnishees below, to raise the question of the validity of the judgment against the attachment debtor, whether

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