Ray v. Keith

Mr. Justice Wilkin delivered the opinion of the court: It is insisted on behalf of defendants in error that this court is without jurisdiction for the reason that no freehold is involved, the contention being, that because the interplea does not set up by what ¿title the interpleader claimed to be the owner of the property, she may have a mere possessory right which would not amount to a freehold. The attachment writ was levied upon the property as belonging to the defendant in the attachment,—i. e., as the absolute owner thereof. The interpleader claims to be the owner of the same property. By her averment that the property “was, at the time the same was so attached and levied upon, and still is, the property of her, the said Susan C. Ray, and not of the said Moses A. Thayer,” she claims the title levied upon,—that is, the fee simple title,—and a freehold was thereby put in issue. Monroe v. VanMeter, 100 Ill. 347; Frank v. King, 121 id. 250; Ducker v. Wear & Boogher Dry Goods Co. 145 id. 653; Alsdurf v. Williams, 196 id. 244. We are inclined to think the first error assigned by plaintiff in error should be overruled. As will be seen, the only ground for that assignment of error is, “because said replication failed to allege or show the recording of a certificate of levy.” The demurrer to the replication was general. We have uniformly held that an attaching creditor who levies his attachment without notice of a prior deed, either actual or constructive, acquires a lien which, if perfected by judgment, execution, sale and deed, will hold the legal estate as against the holder under the unrecorded deed. (Thomas v. Burnett, 128 Ill. 37, and authorities cited on page 42.) The language of the averment of the replication is, “that at the time the said realty was attached and levied upon by virtue of said writ of attachment the title to said real estate stood of record in said Cook county, in fee simple, in the name of said defendant, Moses A. Thayer, * * * and that prior to and at the time of the levy of said attachment, plaintiffs, or any or either of them, had no notice of the alleged ownership of said property by said interpleader.” This language, under the general demurrer, must be held to mean a legal levy, and while section 9 of the Attachment act makes it the duty of the officer making the levy to file a certificate of such fact with the recorder of the county where such land is situated, and provides that after the filing of the same such levy shall take effect as to creditors and bona fide purchasers without notice, and not before, it was not necessary, as between these parties, to allege in the replication that the certificate of levy was filed,—in other words, it was not necessary to set out the various acts by the officer in making the levy. The court did not err in overruling the demurrer to the amended replication. Section -26 of the Attachment act provides that the practice and pleading in attachment suits, except as otherwise provided in the act, shall conform, as near as may be, to the practice and pleadings in other suits at law. Applying this section to the pleadings and practice under an interpleader provided by section 29, when the claimant demurred to the amended replication she admitted the facts therein alleged, and upon overruling that demurrer she further elected to abide by the same, and submitted to the court the question of law whether or not the facts so admitted entitled her to a judgment for the property, or whether it was, under those facts, subject to the attachment. While section 29 requires the court, upon the filing of the inter-pleader, to immediately (unless good cause is shown by either party for a continuance) direct a jury to be empaneled to inquire into the right of property, when the result of the pleadings is to submit to the court only a question of law a jury is dispensed with. Therefore the court did not err in rendering judgment as under that replication, if it had presented the only material issue between the parties, and while the judgment entered was informal, we are of the opinion that, in substance, it is sufficient and settles the right of property between the parties. It remains to be seen whether the second error is well assigned,—that is, that the superior court erred in entering judgment while a material issue remained undisposed of. As-will be seen from the foregoing statement, the first general replication, which simply traversed the interpleader denying that the claimant was, at the time the same was attached and levied upon, or is now, the owner of the property attached, has not been tried either upon demurrer or an issue of fact, and if, in view of the amended additional replication, a material issue still remained undetermined under this general replication, then undoubtedly it was error for the court to enter final judgment against the claimant without first disposing of that" general replication, unless she in some way waived her right to have that issue disposed of. The record fails to show that she made any objection to the final judgment on the ground that a material issue remained undisposed of. We are of the opinion, however, that the issue presented by the general replication became immaterial under the amended additional replication. By the latter the plaintiffs admitted, in effect, the allegation of the interplea, but sought to avoid the same by alleging new matter. In other words, their amended additional replication was, in effect, a plea of confession and avoidance,—i. e.., confessed that Susan C. Ray was the owner of the property attached, but placed their right to the attachment upon the ground that the title to the same stood of record in the defendant in the attachment, and that they had no notice of the claimant’s ownership or title. ■ If, therefore, a trial had been had upon the first replication it would have settled nothing not determined under the amended additional replication. We are of the opinion that there was no reversible error in the proceedings below by reason of the failure to dispose of the issue so made. The judgment of the superior court will be affirmed. Judgment affirmed.