Brockway v. Trinity Methodist Episcopal Church

Mr. Chief Justice Hand delivered the opinion of the court: The sole question before us is, was it necessary for appellant to sue out an execution within one year from the date of filing the transcript in the office of the circuit clerk in order to keep alive the lien of said judgment after one year from - the date of filing said transcript? The contention of appellant is, that the provision of the statute requiring an execution to issue within one year from the date of a judgment of a court of record, in order to preserve a lien for more than one year, was satisfied by the execution issued by the justice of the peace upon said judgment, while appellee insists that the statute requires that an execution issue from the office of the circuit clerk within one year from the filing of the transcript therein, as in case of judgments in courts of record. Section 7 of article 11 of the Justice and Constable act (Hurd’s Stat. 1901, p. 1126,) provides that a judgment before a justice shall become a lien upon the personal property of the defendant from the delivery of an execution to the constable, “and the real property of such defendant, not exempt from execution, shall be bound as aforesaid, from the date of the filing of a transcript of the judgment in the clerk’s office, as provided in this act.” Section 1 of article 12 of said act provides, when it appears from the return of an execution issued from a justice court that the defendant has no personal property sufficient to satisfy said judgment and costs within the county in which the judgment was rendered, if the plaintiff so desire the justice may certify a transcript of said judgment to the clerk of the circuit court of the county in which the judgment was rendered, and which, when filed by the clerk, “shall thenceforward have all the effect of a judgment of the said court, and execution shall issue thereon, out of that court, as in other cases.” Section 1 of chapter 77, after providing that a judgment in a court of record shall be a lien on real estate of the person against whom it is obtained for a period of seven years from the date rendered, contains the following provision: “When execution is not issued on a judgment within one year from the time the same becomes a lien it shall thereafter cease to be a lien,” The issuing of the execution from the justice court cannot be held to be a compliance with the provision of section 1 of chapter 77, requiring an execution to be issued within one year from date of judgment. The purpose of the issuing of the execution from the justice court is to create a lien upon the personal estate of the defendant, and its return “no property found” is a condition precedent to the right of plaintiff to file a transcript. (Wooters v. Joseph, 137 Ill. 113.) Upon the return of the execution “no property found” it becomes the privilege of the judgment creditor to have a transcript, which transcript, when filed in the circuit clerk’s office, has all the effect of a judgment of the circuit court. It is the filing of the transcript in said office which creates a lien on real estate,—not the recovery of judgment in the justice court,—and upon the filing of the transcript the judgment creditor acquires the rights of judgment creditors in courts of record, but no greater, and in order to preserve a lien for more than one year an execution must issue as in case of judgments obtained in courts of record. We are of the opinion that the superior court of Cook county properly found in its decree that the filing of the transcript in the office of the clerk of the circuit court was not sufficient to create a lien upon real estate for more than one year from the filing of said transcript, and that more than one year having elapsed between the date of filing the transcript and the date of the issuing of this execution, and the premises in question in the meantime having been conveyed to appellee, it took the same freed of said judgment lien, and that the sale thereof under said execution was void and properly canceled and set aside as a cloud upon appellee’s title. The decree of the superior court will therefore be affirmed. Decree affirmed.