National Bank of America v. Indiana Banking Co.

Citations

• 114 Ill. 483
• 2 N.E. 401

Syllabus

<p>1. Gaenishment—form of judgment. A judgment against a garnishee should be rendered in favor of the attachment or judgment debtor, for the benefit of the attachment or judgment creditor, who is treated as the real plaintiff, against his own debtor. Such judgment must, in form at least, be for the whole amount due from the garnishee, and whatever surplus there may be after paying the creditors entitled under the statute to share in the distribution to be made, belongs to the debtor in whose name the suit is prosecuted.</p> <p>2. Same—surplus after paying creditors—adjustment as between the attachment debtor and garnishee. After the creditors entitled to share in the distribution of the property attached or funds garnisheed, have been paid, if equities exist between the garnishee and the attachment debtor as to the surplus, the court, no doubt, may adjust them, and thus avoid any hardships that may arise.</p> <p>3. Same—what creditors preferred, and in respect to what fund. Under section 37 of the Attachment act, property, real and personal, attached, and funds in the hands of a garnishee, are placed on the same footing, and are held, from the time of the levy and service of the writ, for the benefit of all the creditors of the attachment debtor who shall obtain judgments against him within the time and in the manner specified in the statute; and such fund can not be appropriated to the payment of any other creditors until those so entitled to share in the same have been ascertained and paid.</p> <p>4. Same—transfer of the fund by bank check d/rawn before and after service on the bank. Where a depositor in a bank, before the service of process upon the bank as garnishee, at the suit of a creditor of the depositor, drew a check in favor of another, which was forwarded to the bank, and was by it paid in due course of business after the service of the writ, and charged to the account of the depositor, it was held, that the bank, as garnishee, was entitled to credit for