Gen. No. 22,338 | Ill. App. Ct. | Oct 10, 1917
delivered the opinion of the court.
This is an appeal by Lena Warnke in which she seeks to reverse a judgment of the County Court dismissing a petition filed by her under the Insolvent Debtors’ Act, and remanding her to the custody of the sheriff:.
No brief has been filed on behalf of appellee. It appears that a judgment for $3,000 was entered on the verdict of a jury against the appellant in the Circuit Court of Cook county in an action for slander. An execution was issued, and after demand was returned no property found and no part satisfied. Subsequently an Order was entered by the Circuit Court awarding a writ of capias ad satisfaciendum. Appellant was taken under this writ by the sheriff and thereupon she filed her petition in the County Court seeking to be discharged under the Insolvent Debtors ’ Act.
The first four points in appellant’s brief question the proceedings in the Circuit Court. None of these points is argued, and we might refuse to consider them, but it is sufficient to say that the judgment of the Circuit Court cannot be collaterally attacked by the proceedings in the County Court.
Appellant next contends that she should have been discharged, for the reason that she was held under an alias capias ad satisfaciendum, and there is no law authorizing such alias writ. In support of this it is argued that the statute is similar to the Attachment Act, and under that act it has been held that there is no warrant.for an alias writ of attachment. We cannot agree with the contention that there is no warrant for the issuance of an alias writ of capias ad satisfaciendum. Section 4 of the Practice Act (J. & A. ¶ 8541) expressly authorizes the issuance of such an alias writ. (See also section 64, ch. 77, Rev. St., J. & A. ¶ 6811.)
Appellant next contends that as she was placed under arrest on the theory that she had refused to surrender her property to satisfy the judgment, the judgment creditor cannot shift her position and hold appellant on the theory that malice was the gist of the action in the Circuit Court. The record discloses no evidence offered by appellant tending to show that she had not refused to turn over all her property towards the satisfaction of the judgment. Furthermore, it appears that the judgment creditor proceeded on both theories.
Where malice is the gist of the action in which the judgment was rendered, the judgment debtor cannot be discharged under the Insolvent Debtors’ Act. Section 2, ch. 72, Rev. St. (J. & A. ¶ 6199); Jernberg v. Mix, 199 Ill. 254" date_filed="1902-10-25" court="Ill." case_name="Jernberg v. Mix">199 Ill. 254; First Nat. Bank of Flora v. Burkett, 101 Ill. 391" date_filed="1882-01-18" court="Ill." case_name="First National Bank v. Burkett">101 Ill. 391; People v. Greer, 43 Ill. 213" date_filed="1867-01-15" court="Ill." case_name="People ex rel. Livergood v. Greer">43 Ill. 213.
The action in the Circuit Court was for slander, and malice is the gist of such action. McKee v. Ingalls, 5 Ill. 30. The judgment of the Circuit Court is conclusive of the question of malice, as both counts of the declaration charge malice. Jernberg v. Mix, supra.
Complaint is also made that when the execution was served on appellant and payment demanded, she was not notified by the sheriff that unless she paid the judgment she might be taken into custody. The record discloses that she was first taken on the original writ, which was afterwards quashed, and again on the alias writ. Obviously she had sufficient notice.
Although the point is not made, we find upon looking into the record that appellant, defendant in the slander suit in the Circuit Court, was 'defaulted for want of appearance. Subsequently a jury was sworn “to try the issues joined herein.” There were no issues joined. Section 1 of the Act of June 17, 1893 (J. & A. ¶ 4145), provides that no person shall be imprisoned for nonpayment of a judgment in any civil action, except upon conviction by a jury, unless the defendant in such action waives a jury in writing. There was no proper verdict of a jury in this case finding the defendant in the slander suit guilty, and although the judgment may be valid, an execution against the body could not properly be issued, and, if issued, should be quashed by the Circuit Court. Swan v. Mulherin, 67 Ill. App. 77" date_filed="1896-11-19" court="Ill. App. Ct." case_name="Swan v. Mulherin">67 Ill. App. 77; People v. Koehler, 146 Ill. App. 541" date_filed="1908-12-07" court="Ill. App. Ct." case_name="People v. Koehler">146 Ill. App. 541.
The County Court having no jurisdiction to discharge the defendant, the judgment is affirmed.
Affirmed.