33 Kan. 675 | Kan. | 1885
The opinion of the court was delivered by
On March 25, 1884, P. H. Kollock and B. Fanning recovered before a justice of .the peace of Marion •county in thisjstate, a judgment against Melvin Burrows, ag
It is claimed, on behalf of Burrows, that the order of the district judge committing him to the jail of Marion county until he should pay the amount of the judgment of March 25,1884, and the provisions of the code authorizing his examination and commitment, are violative of § 5 of the bill of rights of the constitution of the state, which provides that “the right of trial by j ury shall be inviolate; ” also § 10 of the bill of rights, that “no person shall be a witness against himself;” also, of § 16 of the bill of rights, that “no person shall be imprisoned for debt, except in cases of fraud; ” and also, are obnoxious to the fifth amendment to the federal constitution, that “ no per
The principal contention is, that Burrows had the right, upon his examination, to have the question of his ability to pay the judgment decided by a jury. In re Grace, 12 Iowa, 208, is cited to support this proposition. Therein, it is decided that under a somewhat similar provision of the Iowa statute, the court has not the power to punish for contempt, without giving the party charged a jury trial. The court, in that case, pronounces the statute under which the proceedings were had offensive to a peculiar provision of the constitution of Iowa in reference to trial by jury, said to have been introduced into the constitution to secure fugitive slaves the right to such trial. Mr. Pomeroy, in his notes in Sedgwick on Statutory and Constitutional Law, 490, says, in reference to this case:
“But .this decision is probably exceptional; for a similar statute exists in many states — in most of those which have adopted the New York code of procedure — and seems to have raised no objection.”
The proceeding in aid of execution, though created by statute, is a proceeding in the action in which the judgment was recovered, after the judgment debtor has had a hearing and trial, and is a substitute for the creditors’ bill formerly used in chancery. The proceeding is a simple regulation of well-established and well-defiued jurisdiction which courts of equity were accustomed to employ. After the decree in a court of equity for the delivery of the property or effects, the debtor, upon disobeying the decree, was adjudged for his contumacy guilty of contempt of the authority of the court. He therefore could be imprisoned so long as he remained in contempt. Obedience, however, to the decree — that is, the delivery of the property — would terminate the imprisonment at any time. The purpose of the statute is to require the delivery of the property of the judgment debtor for the payment of his debts; and if it is made, the debtor cannot be imprisoned. It is only when the debtor has property which he unjustly refuses to
It was said in Kimball v. Connor, 3 Kas. 414, that the provision of the bill of rights concerning jury trial does not require every trial to be by jury:
“Nor does it contemplate that every issue which by the laws in force at the adoption of the constitution of the state was triable by jury, should remain irrevocably triable by that tribunal. Trial by jury is guaranteed only in those cases where that right existed at common law. Such is the meaning of the constitutional provision referred to, and in statutory proceedings in chancery, etc., the legislature is fully competent to dispense with the jury.”
Further, in the case of In re Grace, supra, cited by counsel, it was said:
“The failure of the debtor to surrender his property liable to execution to the payment of the judgment might well be such fraud as that, within the meaning of the constitution, he would forfeit his right to claim exemption from imprisonment. Not only so, but if the fraud was once found by a competent tribunal, the correctness of that finding could not be reviewed in another court or by any judge upon habeas corpus.” (The State v. Becht, 23 Minn. 411; Kearney’s Case, 13 Abb. N. Y. Pr. 459; Ex parte Smith, 53 Cal. 204; Ex parte Cohn, 55 Cal. 193; People v. Cowles, 3 Abb. N. Y. App. Dec. 507; The State, ex rel., v. Burrows, ante, p. 10.)
Counsel for petitioner refers to the case of Ex parte John Hardy, 68 Ala. 303, as decisive that the sections of the code under consideration do not authorize imprisonment for debt. That decision was rendered by a divided court, and to us the dissenting opinion of Chief Justice Erickell is the more satisfactory. It was no violation of the constitution to require the judgment debtor to answer, in a civil action, concerning his property, especially as he claimed no exemption on the
“ No person shall, on examination pursuant to this article, be excused from ansAvering any question on the ground that his examination will tend to convict him of a fraud ; but his answer shall not be used as evidence against him in a prosecution for such fraud.”
We therefore conclude that the provisions of the code, “in aid of execution,” conferring upon the district judge the power to require a judgment debtor to appear before him to answer concerning his property, which he unjustly refuses to apply toward the satisfaction of a judgment recovered against him, and to order any money, or other property in his actual possession and under his control, not exempt by law, to be delivered up and applied toward the satisfaction of the judgment under which the proceedings are had, and to enforce said orders by proceedings for contempt, in case of refusal or disobedience, are not violative of §§ 5,10 or 16 of the bill of rights of the constitution of the state, nor of the fifth amendment of the federal constitution. (Code, §§ 483, 490; The State, ex rel., v. Burrows, supra.)
Counsel calls attention to Bank v. Bank, 6 Ohio St. 254, as establishing the doctrine that the district judge has no authority to require a judgment debtor to deliver over money in his hands and under his control to satisfy a judgment rendered against him. That case merely decides upon this point that no peremptory order to pay the debt or to deliver the property can be made against a third person or a stranger to the original judgment. In such a case, the judge is to order the property or debt due the judgment debtor to be applied to the satisfaction of the judgment, thus fixing the right of the judgment debtor, so that when possession of the property is obtained or the debt collected by a sheriff or receiver, under § 491 of the code, the proceeds may be applied to the discharge of the judgment.
It is assei’ted that as Burrows was required to pay the orig
The claim that the examination of the judgment debtor outside of the county of his residence renders the proceedings void, is not well taken; because it appears from the record that the examination outside of Marion county was had with the consent of all the parties, and that subsequently the hearing of the case was renewed in Marion county, where all of the evidence taken at the examination was read and considered, and the order for the payment of the judgment was made in the county where the debtor was served and resided. (The State, ex rel., v. Burrows, supra.)
It is finally alleged that the order of commitment is illegal, because the judge did not reduce all his orders to writing, together with the minutes of the proceedings, and file the same with the district clerk of Marion county. It appears from the evidence that the terms of the statute were complied with, excepting that the clerk failed to enter upon his execution
The petitioner must be remanded.