Gilray v. Metropolitan National Bank

Mr. Presiding Justice Freeman delivered the opinion of the court. One Theodore A. Morgenstern sued Robert Gilray in an attachment proceeding brought before a justice of the peace, and summoned the Metropolitan National Bank as garnishee. Gilray was not served with process nor was there any propertjr found upon which to levy the attachment writ. The justice rendered judgment against Gilray by default as provided in sections 81 and 83, chapter 79, Revised Statutes. Subsequently, the garnishee having appeared and answered, a hearing was had before the justice and the garnishee was discharged, recovering judgment for costs. From this judgment in favor of the garnishee an appeal was taken to the Circuit Court, not by Gilray, the attachment debtor, nor in his name, for the use of Morgenstern, but by Morgenstern, the plaintiff in the original attachment, against whom, so far as appears from the record, no judgment was entered. He was not a party of record in the garnishment proceeding before the justice. As beneficial plaintiff only, he had no right to sue in his own name and did not. For the same reason he had no right to appeal in his own name from a judgment against his principal. Union Nat. Bank v. Barth, 179 Ill. 83-86. That right exists only by statute and is granted only to the parties to the suit. See also Murphy v. Consolidated Tank Line Co., 32 Ill. App. 612. The suit, therefore, was properly dismissed when the cause was reached for trial in the Circuit Court, without reference to whether the reason apparently given for the court’s action was or was not correct. Both parties rest the argument presented in this court upon the question whether there was a valid judgment against the attachment debtor upon which to base the appeal to the Circuit Court from the judgment of the justice discharging the garnishee. If that appeal had been taken in the name of Gilray, the attachment debtor, for use, etc., it would doubtless have had the effect to set aside, as stated in Reynolds v. DeGeer, 13 Ill. App. 113-116, “ the entire adjudication, including that by which the attachment was dissolved,” viz., the discharge of the garnishee and the failure of the garnishment proceedings upon which the attachment depended for validity. “ By said appeal the adjudication had before the justice was vacated and the cause was removed to the Circuit Court for a trial de novo.” Idem. In such case it would have become necessary for the Circuit Court to determine whether the plaintiff in attachment was entitled to a judgment against the attachment debtor, as well as whether the latter was entitled to a judgment against the garnishee. The case before us is different from one in which the justice finds against the garnishee. Under such finding the judgment in rem against ,the attachment debtor would remain in full force, and if the garnishee appealed he would not be concerned as to wkether the Circuit Court heard evidence to prove the indebtedness claimed by the plaintiff in attachment. Pomeroy v. Rand, 157 Ill. 176. When, however, as here, the justice has jurisdiction and renders judgment in favor of the garnishee, his “ errors and irregularities can only be called in question by the defendant in the original attachment.” Idem. The judgment of the Circuit Court is affirmed. Affirmed.