Walsh v. Horine

Mr. Justice Breese delivered the opinion of the Court: The record in this case shows a proceeding against Horine, the master in chancery of Monroe county, as a garnishee, under the following state of facts: One O’Kelly had obtained a judgment in the Monroe Circuit Court for damages and costs against Walsh, on which an execution was issued and returned by the sheriff “no property found.” The judgment creditor then made an affidavit in due form, that Horine had money in his hands belonging to Walsh, and on interrogatories filed, Horine answered, that as master in chancery, and in accordance with a decree made by the Monroe Circuit Court, he sold, in May, 1862, the homestead of Walsh, and a short time after the sale tendered the statutory amount, one thousand dollars, which Walsh declined then to receive. This money remained in the hands of the master in chancery up to the time he was served with the garnishee process, and is still in his hands, and this constituted all the indebtedness as against him' in favor of Walsh. Walsh, in his affidavit, states, as a reason why he did not accept the tender, that he expected to be able to redeem the premises from the sale. He further states, that he entered his motion at the spring term, 1863, to set aside the sale for irregularity, which motion was continued to the October term of that year, when it was overruled. The garnishee process was served on the master in chancery the twentieth of November, 1863. The homestead act provides, that the officer selling the homestead, shall, out of the proceeds of the sale, pay to the execution debtor, the sum of one thousand dollars, which shall be exempt from execution for one year. Scates’ Comp. 576, sec. 5. The question is, had the year expired when the garnishee process was served ? This question, we think, must be answered in the negative. A reasonable time, within the period of redemption, must be allowed a judgment debtor, whose homestead has been sold, to test the validity of the sale by motion or other proceeding, before the court out of which the process issued, or to take the money. He may be advised by his counsel that the sale is irregular and invalid, and he ought to be allowed time to test the question. The statute does not say that the money paid to the debtor shall be exempt from execution for one year from the day of sale, for which-the plaintiff contends, but that when paid to the debtor it shall be exempt for one year. It seems, therefore, that the statute does not begin to run until the money is actually paid over to the judgment debtor: In this case the garnishee process was served immediately after the decision of the court overruling the motion to set aside the sale, at which time the year had not expired. It would be unjust, and contrary to the analogies of the law in such cases, while a motion or other proceeding, instituted in good faith, to test the validity of a sale, is pending in court, to count the time thus consumed as part of the year. A decision on the motion may be delayed by the court, by which the debtor should not suffer a loss and injury. The year not having expired, it is unnecessary to decide the other point raised, whether the money, while in the hands of the master, was so in the custody of the law as to protect it from this process. Our views, on a kindred question, may be found in the case of Lightner v. Steinegal, 33 Ill. 510. We see no objection to the form in which the proceeding was instituted against the garnishee. It pursues the mode prescribed in Stahl v. Webster, 11 Ill. 518 ; Gillilan v. Nixon, 26 Ill. 52 ; Farrell v. Pearson, 26 Ill. 463 ; Rankin v. Simonds, 27 Ill. 352, and Cariker v. Anderson, 27 Ill. 358. There being no error in the judgment of the Circuit Court dismissing the proceedings against the garnishee, the same is affirmed. Judgment affirmed