33 N.E.2d 591 | Ill. | 1941
Lead Opinion
The circuit court of Cook county quashed a writ of capias adsatisfaciendum issued on application of plaintiffs who had previously obtained judgments for personal injuries against the appellee. The Appellate Court for the First District affirmed the action of the circuit court on the ground that the original judgment did not contain a finding that malice was the gist of the action as required by section 5 of the Judgments act, as amended. (Ill. Rev. *378 Stat. 1939, chap. 77, par. 5.) The cause is before us by appeal on leave to appeal granted.
On April 21, 1938, judgments in the amount of $10,625 and $400, respectively, were entered in favor of plaintiffs for personal injuries sustained by them in an automobile collision. The jury also made a special finding that the conduct of the defendant in the operation of his automobile was of such reckless character as to amount to wilful and wanton misconduct. A writ of capias adsatisfaciendum was issued September 2, 1938, and the appellee was committed to jail September 19, 1938. On that day, plaintiffs advanced $4 to the sheriff in compliance with section 30 of the Insolvent Debtors act (Ill. Rev. Stat. 1939, chap. 72, par. 29) which requires that the creditor must pay the keeper of the jail or the sheriff, fees for receiving the person committed and board for one week. On Saturday, September 24, 1938, an attempt was made by the plaintiffs to pay $3.50 to the sheriff for the following week's board, but it was refused, being considered by the sheriff to be premature. On Tuesday, September 27, 1938, the $3.50 was tendered and was accepted by the sheriff for the second week's board of appellee. A writ of habeas corpus was issued September 29, 1938, and on October 10 of the same year, an order was entered discharging the appellee because of the plaintiff's failure to advance the board at the commencement of the week as required by the above statute.
Subsequently, on December 6, 1938, an alias writ of capias adsatisfaciendum was issued by the clerk of the circuit court on the request of plaintiffs and this writ was quashed on motion of appellee on February 9, 1939, which was the order affirmed by the Appellate Court.
Appellant contends that section 5 of the Judgments act (Ill. Rev. Stat. 1939, chap. 77, par. 5) does not require a special finding that malice is the gist of the action. The act provides that no execution shall issue against the body *379
of the defendant except when the judgment shall have been obtained for a tort committed by the defendant, and it shall appear from a special finding of the jury or from a special finding by the court, if the case is tried by the court without a jury, that malice is the gist of the action. This court held inIngalls v. Raklios,
The order of October 10, 1938, in the habeas corpus proceeding, whereby defendant was discharged from custody, was not an appealable order and ended appellee's liability to imprisonment. Appellant argues that the failure to advance board for the appellee at the precisely correct time was a mere non-observance of a form of law, and, by such argument, attempts to justify the issuance of an alias writ. It is rather obvious that if alias and successive writs of *380 capias ad satisfaciendum were permitted it would be within the power of a creditor unconscionably to harass his debtor by the mere expedient of failing to pay board, followed by release of the debtor, to be followed by a new imprisonment on an alias writ at the most inconvenient time the creditor could pick for that purpose, and so on, ad infinitum. No such construction of any existing law can be tolerated.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
Concurrence Opinion
I agree with the result reached in this opinion but not with the reasoning thereof.
Dissenting Opinion
The majority of this court has, by its opinion, added to the words of the statute "and it shall appear from a special finding of the jury, or from a special finding by the court, if the case is tried by the court without a jury, that malice is the gist of the action," in effect, the following: "And this same finding that malice is the gist of the action must be included in the judgment in the former case as well as in the latter." The case of Ingalls v. Raklios,
This court has held that the constitutional provision that no person shall be imprisoned for debt (section 12, article 2) has no reference to judgments for torts, but applies only to contractual debts. (People v. Walker,
For these reasons, I dissent. *382