Garrett v. Murphy

Mb. Justice Adams delivered the opinion of the court. This was an action by appellee against appellant to recover the balance due on a lease executed by appellee to appellant. It was admitted by appellant, on the trial, that $182.50 was the correct balance unpaid on the lease; also that appellee, September 24, 1900, assigned to Mary E. Kirby, for whose use the suit was brought, all rent unpaid on the lease, but that appellant had no notice of such assignment until October 1, 1900. Appellant’s sole defense was that in certain garnishment proceedings against him, entitled John A. Murphy, for use of Henry Best, v. Thomas Garrett, judgment was rendered against him, as garnishee, for the sum of $150, and he tendered to appellee, on the trial, $32.50. To sustain his claim he offered in evidence a transcript of the proceedings in garnishment before a justice of the peace, from which it appears that the summons in garnishment was issued July 10, 1900, and that July 18, 1900, on appellant’s admission that he was indebted to John A. Murphy in the sum of $150, which would fall due October 1, 1900, judgment was rendered against him for that amount, and execution was stayed until October 1, 1900. Appellant offered the transcript in evidence, and the court, on objection made, excluded it, and this is assigned as error. - The transcript shows that the proceedings were based on a judgment, but contains no affidavit in support of the garnishment proceedings, nor was any such affidavit offered in evidence. In order to give the justice jurisdiction of the subject-matter, it was necessary that an affidavit should have been made, showing the judgment on which the garnishment proceeding purported to be based, the amount thereof, execution issued thereon, and a return of nulla bona on the execution. Rev. Stat. Chap. 62, Sec. 1; Gibbon v. Bryan, 3 Ill. App. 298; Stickley v. Little, 29 Ill. 315. A justice’s court being one of subordinate and limited jurisdiction, created by statute, nothing can be presumed in favor of its jurisdiction. Its jurisdiction must appear affirmatively on the face of the proceedings. Lindblom v. Doherty, 102 Ill. App. 1, and numerous cases therein cited. This is said solely as to the transcript offered in evidence. The defense of appellant being based on the judgment in garnishment, the court properly excluded the transcript, it not showing jurisdiction of the subject-matter in the justice, and no affidavit being offered in evidence. But even though the justice had had jurisdiction, it does not appear from the bill of exceptions that the appellant offered any evidence to prove that he paid the justice’s judgment, or that it was for the demand now sued on. The bill of exceptions merely recites, the defendant “ says that he has been garnisheed by judgment creditors of plaintiff, as appears by defendant’s exhibits A and B hereto attached, for and on account of the same demand here made by plaintiff; and that a judgment has been rendered against him as garnishee for the sum of $150, and which garnishment judgment he has paid before the commencement of this suit.” This is a mere recital of what appellant claimed on the trial, and not an offer of evidence. Again, he admits that he knew of the assignment of the rents to Marv O v E. Kirby, October 1, 1900, when the rent fell due, and it does not even appear from his claim that he did not pay the judgment after notice of the assignment. The judgment will be affirmed.