Stoddard v. Gilbert

Mr. Justice Waterman delivered the opinion of the Court. In the case of Warren v. Howe, 44 Ill. App. 147, this court held that the discontinuance of insolvency proceedings by order of the County Court left all parties where they stood at the date of the assignment; “ that is, left the assignor the owner of the assets, subject to whatever liens by way of judgment or otherwise existed thereon.” In Howe v. Warren, 154 Ill. 227-247, the Supreme Court in speaking of such an order of discontinuance, said: “ Upon the discontinuance, the duties of the assignee necessarily cease, except so far as may be necessary to remit the parties to their rights as they existed before the assignment, in respect to the residuum of the estate. Upon this being done the debtor again has his estate, except so far as administered, liable to be taken in satisfaction of his indebtedness, precisely as if no assignment had been made, and each creditor stands upon the same footing of right to proceed against such estate as such right existed Avhen the assignment was made.” In Terhune v. Kean et al., 155 Ill. 506, the ruling in Howe v. Warren is approved. It is true that in those cases, by the course of pleading, it stood admitted that the discontinuance was in pursuance of a scheme to defraud creditors, but the decisions are placed upon the ground of the language of the statute. Indeed, the statute so plainly declares that upon a discontinuance of the proceedings “ all parties shall be remitted to the same rights and duties existing at the date of assignment, except so far as the estate shall have already been administered and disposed of,” that it is difficult to see how the holding could have been otherwise. The judgment of the Circuit Court is affirmed.