Buchter v. Dew

Mr. Justice Breese delivered the opinion of the Court : The facts in this record clearly show that, whatever may be the rights of the other judgment creditors, under the mechanics’ lien law, to a pro rata share of the proceeds derived from a sale of the premises by the sheriff, the sheriff himself has no right. It appears the sheriff, in this case, paid over to the plaintiff in error the full amount of the judgment he had recovered at the same term of court with other creditors who were then prosecuting their liens, whereas, under the statute, these judgment creditors were Jo be paid pro rata out of the proceeds. It is, in principle, like the case of several attachment suits pending in favor of different plaintiffs against the same defendant, and where property has been attached. They are to be paid pro rata out of the proceeds of the sale of the property. • It was held by this court in such a case, if one of the attaching creditors obtains more than his share of the fund, the matter must be adjusted in a proceeding between the creditors, clearly implying that the sheriff who sold the property could not sue for the overplus. Warren v. Iscarian Community, 16 Ill. 114. We cannot see what legal or equitable right the sheriff who sold the property has to recover the excess the plaintiff in error has received over and above his pro rata share of its proceeds. The other creditors may have a right to sue for it, but not the sheriff. It is not his money. The judgment of the Circuit Court is reversed, and the cause remanded. Judgment reversed.