116 Ill. App. 338 | Ill. App. Ct. | 1904
delivered the opinion of the court.
By section 36 of chapter 51 of the Revised Statutes, the report of the master is made the basis for the order of attachment against one who wilfully neglects to obey a subpoena issued by the master. The master’s report, therefore, must contain the necessary elements to warrant the court in' ordering an attachment. In this case it merely shows the issuing of the subpoena, and the service of it by Sobra, the complainant in the suit in which the subpoena was issued. The report fails to show that appellant’s witness fees were paid or tendered to him. In Rapalje on Contempts, section 61, the author says : “Asa general rule a witness will not be punished for contempt, in failing to attend the trial of a civil action, unless his fees have been paid or tendered.” See, also, Bonner v. The People, 40 Ill. App. 628. It has been the practice in the trial courts to require the payment or tender of fees before issuing attachments for witnesses. The master’s report not showing that appellant’s witness fees were paid or tendered, the court should have quashed the attachment, on appellant’s motion. But considering the case on its merits, we cannot sustain the judgment. The imposition of a fine, or the sentencing to prison for contempt, is the rendering of judgment in a criminal case (Bonner v. The People, supra), and in such case the guilt of the party should be established beyond reasonable doubt. Appellant cannot be held guilty unless his fees were paid or tendered. As to whether they were tendered, his evidence and that of Sobra directly conflict. But the circumstance remains that Sobra, in her affidavit of service, does not mention the tender of any money to appellant. If, as she says in her testimony, she tendered $1.60 to appellant, this must have been because she thought the tender necessary to secure his attendance, and, if she so thought, it is somewhat remarkable that she did not mention the tender in her return of the writ. Doubtless her attorney drafted her affidavit of service, after being informed by her as to what she had done. We do not think the tender of witness fees to appellant proved beyond a reasonable doubt. It does not seem to us, from the evidence, that appellant, in view of what his solicitor and another attorney had told him, was contumaciously disobedient, or had any guilty intent, or that he was unwilling, at the time of the rendition of the judgment, to go, before the master and submit to examination.
The judgment will be reversed and the cause remanded.
Reversed and remanded.
