London Guarantee & Accident Co. v. Mossness

Mr. Justice Stein delivered the opinion of the court. It is argued for appellants that under the above cited section of the bankruptcy act the justice’s judgment against them is null and void because Mossness went into bankruptcy within four months after its rendition. So it would be, if it were a judgment against Mossness and not against them. Nor was there any lien obtained against him within the meaning of the act. The fact that the judgment when enforced would diminish the assets of the bankrupt and operate as a preference against his general creditors was not sufficient to make it a lien. Under the uniform decisions of the Supreme Court a garnishment proceeding is an ordinary suit by the defendant for the use of the plaintiff against the garnishee. Stahl v. Webster, 11 Ill. 511; Farrell v. Pearson, 26 Ill. 463; Webster v. Steele, 75 Ill. 544. The liability of the garnishee is purely personal. It was not the design of the legislature to create any lien by garnishment process, and the service of the writ does not create a lien upon the debt owed by the garnishee, or the property held by him. Bigelow v. Andress, 31 Ill. 322; McElwee v. Wilce, 80 Ill. App. 338-342. It was the duty of appellants to prosecute their appeal from the justice’s judgment with due diligence. That they failed in this duty is evident from what is averred in their bill of complaint and still more so from what is not averred therein. The appeal was dismissed at four o’clock in the afternoon. It was the second case on the trial call. Yet no one was in court in their behalf at the time of the dismissal, and it is entirely consistent with the averments of their bill that no one was there during the entire afternoon except a minute or two. Indeed the inference is strong that in point of fact their representative was there no longer than that, for he reported to them that the case on trial would likely consume all the afternoon, and both he and they appear to have relied upon that assumption. To parties taking such risks a court of equity extends no relief, especially when, as in this case, they did not even learn of the dismissal of their appeal for more than two weeks afterward. The failure of the Law Bulletin to publish the dismissal is of no consequence. There is no averment in the bill that the Bulletin has any official standing or is in any way recognized by the courts; and even if there were, it would not excuse the want of diligence which led to the dismissal of the appeal. Excelsior Electric Company v. Chicago Waif’s Mission and Training School, 41 Ill. App. 111. The decree of the Superior Court is affirmed.