Reade v. Kerr

Mr. Justice Green delivered the opinion of the Court. It appears by the record that appellant, Reade, on January 9,1890, recovered a judgment against Robert H. Talbot for $72.81 and costs, in justice’s court, before Bartley, justice of the peace; that on November 28,1890, an execution was issued thereon, which was returned December 15,1890, nulla bona. On November 28, 1892, appellant filed his affidavit before said justice setting forth that he had obtained said judgment; 'that execution was issued thereon and returned as above stated; that he knew of no property of the defendant subject to execution, and that he has just reason to believe S. S. Kerr is indebted to defendant. Garnishee summons was thereupon issued and served on Kerr, who appeared and answered that he owed Talbot $192.95, whereupon judgment was rendered by the justice against Kerr as garnishee, and he prayed and perfected an appeal to the Circuit Court, where the cause was submitted and tried by the court without a jury, upon the following stipulation, and a finding and judgment for Kerr resulted, whereupon Reade craved, and was granted, an appeal to this court. There had been a second execution issued on Reade’s judgment against Talbot on November 15, 1892, which was returned nulla Iona November 28, 1892. Stipulation of facts, upon which the cause was tried and decided. First. It is agreed that W. W. Reade has a judgment against Robert Talbot for the amount of his claim before the justice of the peace. Second. That execution issued on the judgment and that the defendant Talbot scheduled in apt time. There was no appraisement of the scheduled property. That Talbot was the head of a family and resided with them. That the property scheduled was worth less than §400. Third. That the corn sold to Kerr, for which he was indebted to Talbot in amount that he answered before the justice, was included in the schedule. Fourth. That Kerr owes Talbot §142.50, being the purchase price of the corn included in the schedule. Fifth. The corn was sold to Kerr after the schedule was made and delivered to the officer, and before any other execution issued. This question is presented for our decision: Is the §192.95, which Kerr owes Talbot for corn, included in the schedule, and which he purchased of the latter after said schedule was delivered to the officer, and before any other execution was issued, liable to said process of garnishment, and could a judgment be lawfully entered against Kerr, as garnishee of Talbot, for that debt ? The trial court held that because the corn had been properly scheduled and was exempt from execution, therefore the debt created by the sale thereof to Kerr, was exempt from garnishment. Exemption laws are purely statutory, and the benefit thereof can be availed of by a certain defined class of debtors only, and upon certain conditions. Personal property is the kind of property involved in this case, and the exemption statutes affecting that class of property must be our guide in deciding the question submitted. The section providing for the exemption of certain personal property from attachment, sale on execution, and from distress for rent, as originally framed, was held by the Supreme Court in Fanning v. Nat. Bank, 76 Ill. 53, to include as property that might be exempted, money due the debtor. But after that decision was made, and in 1877, the legislature, doubtless for the purpose of establishing a different rule, enacted the following proviso to said section: “ Provided that such selection and exemption shall not be made by the debtor, or allowed to him or her, from any money, salary or wages due him or her from any person or ¡versons or corporation whatever.” The language of this proviso is plain and unambiguous, and we understand the meaning and intent is to forbid the judgment debtor from selecting as property exempt from attachment, execution, distraint or garnishment, money due him, whatever may have been the consideration for the debt, or the circumstances out of which it arose. Of course, this proviso does not abrogate the right of the debtor, if the head of a family, as provided in Sec. 14 of the Garnishment Act, to hold as exempt $50 due him for wages, or defeat his right to hold as exempt for one year, the proceeds of the sale of a homestead, and insurance money due him for loss on building, exempted as a homestead, as provided in Secs. 6 and 7 of the Homestead Exemption Act. Subject to these exceptions a judgment debtor, in a garnishee proceeding, can not claim and be allowed the exemption provided in Sec. 1 of the act of 1877, out of money due him. We are fortified in so construing said proviso by the decision of our Supreme Court in Finlin v. Howard, 126 Ill. 259, and Monniea v. German Ins. Co., 12 App. Ct. Rep. 240. And when, as in this case, a judgment debtor*makes and delivers a schedule of property he claims as exempt, and afterward converts a part of the property into a debt, he can not claim such debt as exempt from a subsequent execution issued under the same judgment, even though he then had less property, including said debt, than is allowed by the statute, and such debt is subject to garnishment. Finlin v. Howard, 26 App. Ct. Rep. 66. The conclusion we have reached is that the debt Kerr owed Talbot at the time said garnishee process was served, was subject to garnishment, was not exempt, and the judgment should have been entered in favor of Talbot for the use of appellant against Kerr, as garnishee of Talbot, for the amount of the debt, and it was error to render judgment for the defendant. The judgment is reversed and cause remanded.