119 Wis. 384 | Wis. | 1903
Since 1849, at least, it has been the declared legislative policy of the state that one who, as next friend or guardian ad litem, lends himself to' the bringing of a suit by an infant plaintiff, shall be .responsible for any costs adjudged against such plaintiff. Sec. 29, ch. 90, R. S. 1849, was adopted directly from Hew York, where it had been enacted in 1829, and declared this policy. In 1856, in the adoption of the Code also from ETew York, was enacted sec. 226, ch. 120, Laws of 1856, identical in words with our present sec. 2931, Stats. 1898, preserving the declaration :that such guardian shall be responsible for costs adjudged against the plaintiff, and merely adding, “and payment may be enforced by attachment.” This policy, standing thus unassailed for half a century, has, by the judgment of the superior court, been set at naught.
Of the grounds of this decision we are not fully informed. The most strenuous contention of respondent’s counsel is, however, that sec. 2931 is unconstitutional, because the provision for enforcement of payment of costs by attachment is
But is the legislature restrained from this latter provision by the constitutional prohibition against imprisonment for debt ? In discussing this same constitutional prohibition (In re Meggett, 105 Wis. 291, 297, 81 N. W. 419, 422), we said:
“It does not follow, necessaidly, because a jiarty owes a debt, and is imprisoned until he pays the same sum of money, that he is imprisoned for a debt; not more than it followed because Debs was imprisoned for doing an act which was a crime that he was being imprisoned for a crime without tidal by jury (In re Debs, 158 U. S. 564, 15 Sup. Ct. 900; Eilenbecker*387 v. Dist. Ct. of Plymouth Co. 134 U. S. 31, 10 Sup. Ct. 424); nor more than it follows because one is imprisoned upon an execution against the body'under a judgment for conversion or embezzlement that he is imprisoned for debt, although he may be indebted on implied contract for the property converted or the money embezzled.”
It is under that principle that this and other courts have always recognized that the constitutional prohibition against imprisonment for contract debt did not take away the comprehensive and inherent powers of the courts to protect themselves and parties before them against wilful disobedience of their orders, upon the theory that siieh disobedience constituted a contempt of the court’s authority. In re Meggett, supra.
But, indeed, it is not contended that, if an attachment against a recalcitrant guardian ad litem, who fails to pay the costs for which the statute makes him liable, is a mere exercise of the contempt power of the court, it is forbidden by our constitution. The respondent rests upon the contention that the statute attempts to confer an absolute power of imprisonment by process substantially identical with the common-law writ of capias ad satisfaciendum> and founds this view upon Grantman v. Thrall, 31 How. Pr. 464, and Granholm v. Sweigle, 3 N. D. 476, 57 N. W. 509, which seem to offer some support for it. Thus, in Grantman v. Thrall it was said by the general term of the supreme court of New York, in 1866, apparently without much consideration, that the words “payment thereof may be enforced by attachment” mean “a process in the nature of ca. sa. admits of no doubt,” from which it was argued that the attachment mentioned in the statute was not a preliminary process to bring a party before court to show cause why he should not be punished by imprisonment as for contempt, but that the court was required to issue its absolute writ ca. sa. for his imprisonment until payment of the sum for which he was so liable. Upon the authority of this case the supreme court of Horth Dakota, dealing with a
Independently of the direct authority in New York upon the question, we cannot seriously doubt that the word “attachment” is used in our statute in its correct signification, and that it authorizes what is described by Bouvier (1 Dict. Rawle's Revision, 187) as “a writ issued by a court of record,, commanding the sheriff to bring before it a person who has been guilty of contempt of court, either in neglect or abuse of its process or of subordinate powers. 3 Blackstone, Comm. 280; 4 Id. 283.” The word “attachment” was by no means novel in our statutes at the time of the enactment of the Oode in 1856. Many illustrations of its use might be pointed out, but one specially germane to the subject now in hand is presented by the statutes of 1849 on the subject of contempt (subd. 8, sec. 1, ch. 115, R. S. 1849), authorizing punish
Prom all these considerations, the conclusion is to our
2. Another suggestion is made by respondent, that guardians ad litem are by this statute denied the equal protection of the laws, for that they are subjected to burdens not resting on other parties plaintiff nor on other fiduciaries, such as executors, administrators, or trustees. They are, however, so distinguished from all such others- that we cannot doubt the power of the legislature to classify them separately. They are not parties to the suits they bring, nor subject to entry of judgment directly against them, and yet behind the shelter of the name of á minor, perhaps irresponsible, they have sufficient control to harass the defendant and absorb the attention of the court. If they do so without proper grounds, why should they not be liable at least for costs, like any other plaintiff? Again, they differ from all the other fiduciaries mentioned in that they need neither hold nor control any property of the beneficiary for whom they sue, while thp very existence of an executor or trustee presupposes property in his hands out of which can be satisfied the costs of the suit he brings, if he acts for the welfare of his beneficiary. This distinction entirely justifies the provision of sec. 2932, Stats. 1898, that judgments for costs against such trustees shall be collected only out of the estate in their hands, but for bad faith, and the contrary provision that guardians ad litem shall be responsible personally to the defendant. Such guardian, if he acts in good faith and for the benefit of the minor, is, of course, entitled to be reimbursed such costs, in common with other necessary expenses, out of the estate of the minor, if he has any. Tyson v. Richardson, 103 Wis. 397, 79 N. W. 439.
We conclude, therefore, that no reason is suggested why sec. 2931, Stats. 1898, is not within the just powers of the
A further misconception, shared apparently by the court below and the counsel upon both sides, was that the judgment to be entered needed to expressly pass on the question of liability of the guardian ad litem. The true view on this subject, as fully illustrated by the Hew York decisions — albeit practice decisions, but which we deem founded on reason— is that the judgment for costs in the case of an infant plaintiff should be, in terms, against the plaintiff, as in any other case. "Whether he may or may not have property within reach of ordinary execution is not significant. Schoen v. Schlessinger, 57 How. Pr. 490. The minor is the plaintiff, and, when he fails to recover, judgment for costs in favor of the defendant and against him is warranted by sec. 2920, Stats. 1898, in the same form as if he were not a minor. Sec. 2931,, Stats. 1898, recognizes this by imposing liability upon the guardian “when costs are adjudged against an infant plaintiff.” The liability of the guardian rests not upon the form of the judgment, but upon the express provision of the statute. It results that the judgment in this case should have-followed the ordinary form that the defendant do have and recover from the plaintiff a specified sum of costs, and that the interpolation therein of the provision that they should be enforceable only against the estate of the minor was erroneous.
By the Gowrt. — The judgment appealed from is modified by striking therefrom the paragraph: “And it is further ordered and adjudged that this judgment shall be collected solely from the estate of the said infant, Peter Burhach/ and, as so modified, is affirmed. Appellant to recover costs in this court.