JoDaviess County IL Archives Court.....Gates, Nancy J Turney V A B 1850
************************************************
Copyright.  All rights reserved.
http://www.usgwarch.org/copyright.htm
http://www.usgwarch.org/il/ilfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 19, 2008, 10:32 am

Source: Reports Of Cases
Written: 1850

Nancy J. Turney, administratrix of the estate of J. Turney, deceased, 
plaintiff in error, v. A. B. Gates, defendant in error.

Error to Jo Daviess.

It is erroneous, in revising a judgment against an administrator, to award an 
execution against the goods and chattels, lands and tenements of the 
intestate. (a)

In such a case, where execution was not issued on the judgment against the 
intestate within a year and a day, the lien on the lands of the intestate was 
lost.

The proper order would be to revive the judgment against the administrator, to 
be paid in the due course of administration. (b)

In the distribution of the assets of deceased persons, under our statute, 
judgment creditors without a lien, and simple contract creditors, stand upon 
the same footing.

This was a proceeding by scire facias, in the Jo Daviess Circuit Court, to 
revive a judgment theretofore rendered in favor of the defendant in error, at 
the March term, 1842, of said court, against John Turney, who afterwards 
deceased. The sci. fa. issued against the present plaintiff in error, as 
administratrix of John Turney. The cause was heard before Thomas C. Browne, 
Justice, at the October term, 1844, a default was taken, and a judgment was 
rendered against the plaintiff in error, reviving the former judgment, and 
ordering that execution issue "against the goods and chattels, lands and 
tenements, rights, credits, and effects of the said John Turney, in the hands 
of the said administratrix to be administered, with costs of suit," etc.

The administratrix brings the cause to this court, assigning for error, the 
rendition of judgment on the sci. fa. against the lands and tenements of the 
intestate, and in awarding execution, etc. It does not appear that any 
execution had issued upon the judgment against the intestate within a year and 
a day.

The writ of error herein, was issued in November, 1847.

Van H. Higgins, submitted this cause to the court, ex parte, on the errors 
joined.

Treat, C. J. Gates recovered a judgment against Turner, in March, 1842. No 
execution was issued thereon within a year. Turney died in 1844; and, in 1846, 
Gates sued out a scire facias to revive the judgment against his 
administratrix. An order was entered in that proceeding, that the judgment 
stand revived against the administratrix, and that the plaintiff have 
execution against the goods and chattels, lands and tenements of the 
intestate. The order was erroneous. The plaintiff was not entitled to 
execution on the judgment. He lost his lien on the lands of the intestate, by 
failing to sue out an execution within the year. The proper order would have 
been, that the judgment be revived against the administratrix, to be paid by 
her in the due course of administration: Welch v. Wallace, 3 Gilman, 490. In 
the distribution of the assets of deceased persons, under our statute, 
judgment creditors without a lien and simple contract creditors are put on the 
same footing: Paschall v. Hailman, 4 Gil., 285.

The judgment of the Circuit Court will be reversed, with costs, and the cause 
remanded for further proceedings.

Judgment reversed.

------------------
(a) The revival of such a judgment does not create such a lien against the 
real estate of deceased, as to allow a fi. fa. to issue for its sale: Tanney 
v. Young, 22 Ill., 253.

(b) See Granjunq v. Merkle, 22 Ill., 249; Rosenthal v. Magee, 41 Ill., 370; 
Greenwood v. Spiller, 2 Scam., 502.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

File at: http://files.usgwarchives.net/il/jodaviess/court/gates40gwl.txt

This file has been created by a form at http://www.genrecords.org/ilfiles/

File size: 4.4 Kb