Glanz v. Smith

Mr. Justice Horton, after making the foregoing statement, delivered the opinion of the court. There is no reversible error in the proceedings of the County Court. There is no question but that the money loaned by appellee to Karlstrand was her money. She did not receive it from, or by reason of any act of, Karlstrand. A judgment note was given by Karlstrand, payable to the order of appellee, at the time the money was loaned. The testimony shows no collusion between appellee or her agent and Karlstrand. On the' contrary Karlstrand’s attorney tried to induce appellee’s agent not to enter judgment. The judgment was not entered until about three months after the note was given, nor by reason of any agreement made at the time it was given. We see no evidence of fraud or collusion, actual or constructive, by, or on the part of, appellee. Since the adoption of the assignment act, twenty years since, the courts of this State have been many times called upon to construe its .provisions and to apply the same. It is not deemed necessary to now attempt a review of all such cases. It is the settled rule in this State, under the existing statutes, and in the absence of any national bankruptcy law, that a creditor may legally acquire a preference in the security or payment of a bona fide debt, where there is neither fraud on the part of the creditor nor collusion with the debtor. Where security or payment is obtained in such manner as to be treated as having been acquired under or as a part of a general assignment by the debtor, that is a fraud and will not be sustained. The most recent concise statement of the rule by our Supreme Court is found in Plume & Atwood Mfg. Co. v. Caldwell, 136 Ill. 163, 169, where it is stated that “Section 13 of the Assignment Act, which prohibits preference among creditors, is directed toward insolvent debtors, and is intended to limit and regulate their course of conduct after they have determined to yield the dominion and control of their property for the benefit of creditors, by making a general assignment. It has no application to the conduct of creditors, except in case of collusion with debtors, by which an unauthorized preference is sought to be made. The creditor may, notwithstanding the statute, take steps to secure his debt as best he can. The law does not deprive a creditor of the fruits of superior diligence in securing his indebtedness, so long as he does no act resulting in an unlawful preference by the debtor.” The facts in the case at bar do not show that appellee obtained any illegal preference. A separate and distinct point in appellant’s brief is: “ There is no evidence upon which to sustain the alleged preference, viz.—no execution and levy thereof appearing in the record.” We are unable to discover any good reason for this statement. This case is before the court upon the issues raised by the allegations of the intervening petition of this appellant. It is true that the abstract of record filed by appellant’s attorney does not show it, but the record shows that in said petition by appellant this allegation appears: “ Tour petitioner further represents unto your honors that° execution was issued by the Circuit Court of Cook County, Illinois, and placed in the hands of the sheriff of Cook county at twenty (20) minutes after nine o’clock in the forenoon on December 3, 1896, and that levy was made thereon twenty (20) minutes thereafter upon the property of said John Karlstrand.” Counsel must know that where this allegation appears in his own petition, it was not necessary for appellee to prove the facts there stated. The judgment of the County Court is affirmed.