delivered the opinion of the court.
The only issues of law in this case are between the appellants and the appellee Shoyer. The question is whether the trial court erred in ordering appellants to pay to the clerk of the court for the use of appellee the moneys appellants had received from the garnishees, Marshall Field & Co. and George P. Gore & Co. This was, in effect, a judgment in favor of appellee and against appellants for the sum of. $1,080.80.
The statutory provision in relation to judgment in cases of interpleader is as follows:
“ In all cases where the jury find for a claimant, such claimant shall be entitled to his costs; and when the jury find for the plaintiff in the attachment, such plaintiff shall recover his costs against such claimant.” 1 S. & C. Stat., Ch. 11, Sec. 29.
It has been held by this court, in at least three cases, that when the interpleader is successful, the judgment should be in his favor for costs. Walton v. Detroit Copper & Brass Rolling Mills, 37 Ill. App. 264; Commercial Nat. Bank v. Payne, 60 Ib. 350; Glover v. Wells, 40 Ib. 350; see also Drake on Attachment, Sec. 460; Peck v. Stratton, 118 Mass. 406; Carpenter v. McClure, 37 Vt. 127.
In Glover v. Wells, supra, it was expressly held that a judgment in favor of an interpleader for a sum of money is bad. The right to intervene and interplead in an attachment suit exists only by virtue of the statute, and the statute does not authorize a judgment that the interpleader recover the property in controversy. The object of allowing a third person to intervene as claimant of property, or money garnished, is to protect the garnishees and the intervening claimant; to protect the former against the risk of having to account for the property or the money, as the case may be, to the real owner, in the event that the plaintiff in the attachment is not such owner, and to protect the claimant against the application of his property or money to the payment of the debt of another. He is simply let in for the purpose of establishing his title, if he can, to the property or fund in dispute. The sole issue is whether it is his property, and if he succeeds in establishing his title to the property or fund, as against the plaintiffs in the attachment, the only judgment he is entitled to is for his costs. The question, however, whether the court may order the money paid into court subject to the further order of the court, may become important in further proceedings before the trial court, and therefore may properly be considered here. The situation is this: The funds in the hands of the garnishees were in custodia legis immediately on the service of the writ on the garnishees, and from that time the garnishees held the funds as agents of the court. Drake on Attachment (5th Ed.), Sec. 453a; Brashear v. West, 9 Pet. (U. S.) 608, 622; Shinn on Attachment and Garnishment, Sec. 46; Doane et al. v. Keating, 12 Leigh (Va.), 391, 425.
Appellee’s interplea was filed September 20, 1893. It is recited in the judgment of November 30, 1898, that no notice was served on appellants, the garnishees, or their attorneys, of the filing of the interpleader; but the statute requires no such notice any more than does the practice act require notice of the filing of a plea. Appellants were in court by their attorneys, and must be presumed to know the law that a plea of interpleader might be filed, and, when filed, they were bound to take notice of it.
Notwithstanding the judgment of October 6, 1893, the funds in the hands of the garnishees still remained in the custody of the law, subject to the determination by the court, when the issues on the interplea should be made up, of the question whether the funds in the hands of the garnishees belonged to Bole, the defendant in the attachment, or to appellee; and Avhen the appellants, pending the inter-plea, took the funds from the garnishees and appropriated them to their own use, they took them out of the custody of the law.
In Darley v. Brown, 8 Price (Ex. R.), 607, the defendant, Brown, after action commenced, but before judgment, obtained his discharge under the insolvent act, the claim sued on being included in his schedule, notAvithstanding Avhich, the plaintiff proceeded to judgment, and collected it by execution. A rule requiring the plaintiff to show why the execution should not be set aside, and the money levied under it restored to the plaintiff, was made absolute. At common law, when money had been paid on a judgment which was afterward reversed, restitution might be ordered without a seire facias. 2 Tidd’s Prac., Sec. 1033.
After a sale on execution, it appearing that the execution Avas irregular, it was ordered that the money be returned to the defendant. Doe v. Thorn, 1 Maule & Sel. 425; see also Arrowsmith v. Vanarsdale, 21 N. J. 471; Herman on Executions, Sec. 405; and 4 Wait’s Prac. 555, 557.
In the present case the appellants have collected and appropriated to their own use funds in the custody of the law, while the jury have found, and the court, by overruling appellants’ motion for a new trial, has also found, that the funds in the hands of the garnishees were not the property of the defendant in the attachment; from which it follows that the appellants could take nothing by their suit in attachment. The court had jurisdiction over the appellants and also over the res, the funds in the hands of the garnishees, for the purpose of determining whether the title to the funds was or not in the defendantin the attachment, and we are of opinion that appellants, who were charged with knowledge of all the circumstances stated, acted wrongfully in interfering with the funds in the hands of the garnishees, and that their so doing was an abuse of the judgment of October 6, 1893.
In Juilliard v. May, 130 Ill. 87, the court say (p. 94):
“ There is no legal inconsistency or incongruity that the court should render judgment against an attachment defendant, and order a sale of the property levied on by the writ, and, at a subsequent time or term, adjudge such property to belong to a person other than such defendant, and order its release. Such other person would not be bound by the judgment against the defendant in attachment ordering such sale, and would stand in the attitude of a stranger to the record.”
We are of opinion that the court may, at any time prior to the rendition of the proper judgment for appellee on the verdict of the jury, compel appellants to pajr into court, subject to the further order of the court, the funds collected and received by appellants from the garnishees. The court, however, can not require the funds to be paid to appellee for reasons heretofore stated. If the funds shall be paid into court, on the order of the court, they will, when so paid, belong to the garnishees, and can not be ordered to be paid to appellee, or to any person other than the garnishees, except by consent of the garnishees. When it appears that the money or property in the hands of a garnishee is not the money or property of the defendant in the attachment, the proper judgment is that the garnishee be discharged, and that the interpleader recover his costs of and from the plaintiffs in the attachment. In such case the garnishee should also receive his costs.
The judgment will be reversed and the cause remanded.