Dean v. Smith

23 Wis. 483

• Court: Wisconsin Supreme Court
• Decided: October 15, 1868
• Status: Published

Opinion

Cole, J.

This is an appeal from an order of tbe circuit court refusing to vacate and discharge a writ of ne exeat, and also refusing to have tbe bond given by tbe defendant thereupon, given up and canceled. The writ of ne exeat was issued upon an order of tbe circuit judge made at chambers. Tbe defendant was arrested upon it, and held to bail. He afterward moved tbe circuit court, as above stated, to have tbe writ vacated.

It is said, in tbe brief of counsel for tbe respondent, that tbe order appealed from was correct, because tbe subject matter of that order bad been previously adjudicated in tbe case, and that no appeal has been taken from such previous order. But what .-evidence have we in tbe record of any such previous adjudication ? Tbe record shows that tbe motion to vacate was beard upon tbe complaint, affidavits, order and writ of ne exeat, and the answer of tbe defendant. Perhaps, if the respondent bad shown, upon the bearing of this motion to discharge tbe writ, that a previous motion bad been made for tbe same purpose, tbe question would then be considered res adjutfúcata. Butj as tbe case now stands, we have no proper evidence of any such previous adjudication, and we must, therefore, consider tbe order upon its merits.

This action was brought to obtain a settlement of certain partnership matters stated in tbe complaint; for a general accounting by tbe defendant; for the appointment of a receiver of the partnership property ; and for an injunction restraining tbe defendant from interfering with or removing said property. It is claimed in tbe complaint, that, after payment of tbe partnership debts, the defendant will have in his hands a large sum of money justly due and belonging to the plaintiff. Now it is claimed, in opposition to the order appealed from, that the action is simply one to ascertain and collect a debt, or the excess of partnership moneys in the hands of the defendant. A partnership, it is said, is nothing but a contract, and the obligations of the partners to each other on account of dealings in the scope of the business necessarily arise out of contract, and a writ of ne exeat in such a case is nothing more nor less than imprisonment for debt, which is prohibited by the constitution of this state. The constitution certainly declares that “ no person shall be imprisoned for debt arising out of or founded on a contract, expressed or implied.” Art. 1, § 16. Rut we think a writ of ne exeat is not imprisonment for debt, within the intent and spirit of this provision of the constitution. It is said by the authorities to be in the nature of equitable bail, and issued only by the special order of the court, when the party against whom it is asked is about to leave the jurisdiction of the court, so that the decree of the court will be ineffectual. Neville v. Neville, 22 How. Pr. 500; Brown v. Haff, 5 Paige, 235; Fuller v. Emerick, 2 Sandf. S. C. 626; Johnston v. Johnston, 25 How. Pr. 181. And this, as it appears to us, is the true nature and character of the writ of ne exeat. It prevents a person from going out of the state until he shall give security for his appearance, and is not imprisonment for debt, within the proper meaning and sense of those words.

There has been some conflict of opinion in New York, as will be seen by the above .cases, whether the writ of ne -exeat was not abolished by the Code. But no question of the kind can arise in this state under the plain provisions of our statute. See § 4, ch. 116, and. §§ 10, 11, ch. 129. And unless the writ is prohibited by that clause of our state- constitution which forbids imprisonment for debt arising upon contract, the circuit courts bare tbe power of requiring tbis kind of bail in cases wbicb are of equitable cognizance, where tbe defendant is about to elude tbe justice of tbe court by removing beyond its jurisdiction. "We bave already stated tbat we did not tbink tbe constitution abolished tbe writ.

Tbat tbe complaint and affidavits presented a proper case for granting tbe writ, seems to us plain. It appears that the defendant bad sold and conveyed all of bis property in this state, and converted tbe same into money or cboses in action, and was threatening to leave tbe state and remove to some of tbe western states or territories. He was going to depart beyond tbe jurisdiction of tbe court, and render it impossible for tbe plaintiff to bave an accounting and settlement of tbe partnership transactions in tbis action.

By the Oourt. — The • order of tbe circuit court, refusing to vacate and discharge tbe writ, is affirmed.