Morris v. Schwartz

326 Ill. App. 274

• Court: Appellate Court of Illinois
• Decided: February 13, 1945
• Docket: Gen. No. 43,025
• Status: Published

Opinions

Mr. Justice Friend

specially concurring:

I fully agree with the conclusion that plaintiff’s affidavit was insufficient in that it failed to conform to the requirements of section 62 of the statute, and that a body execution against defendant could not have been properly ordered to issue on such affidavit; but I do not think the procedure under section 62 was intended to be so drastic and peremptory, even when the affidavit is sufficient, as to preclude a judgment debtor, under any circumstances, from objecting to the issuance of a capias. Such procedure would subject the unfortunate debtor who has failed to pay an honest debt, to imprisonment, without permitting him to apprise the court of any conceivable reason, however valid, why the application should not be granted, and enable a spiteful creditor to lodge him in jail on false charges, without any recourse for perjury. I know of no instance in our civil law where a person may be deprived of his liberty without a hearing.

In Nichols Illinois Civil Practice, vol. 5, secs. 5349-5356, pp. 251-257, the author traces the history of legislative enactments empowering imprisonment for debt in tort actions with citations of recent Supreme Court cases interpreting the procedure and effect of the amendment in 1935 of section 5 of the Judgments Act (Ill. Rev. Stat. 1943, ch. 77 [Jones Ill. Stats. Ann. 107.155]). The right to imprison a debtor by capias prevailed at common law regardless of whether the debt was based on a tort or arose out of a contract. (White v. Youngblood, 367 Ill. 632.) Therefore the constitutional provision under consideration is not a grant of power, but a limitation on the common-law right and has been uniformly construed by the courts as applying solely to debts arising out of contract between the parties, either express or implied, and as having no relation to judgments recovered in tort actions. The legislature has the sole power to provide for punishment. (In re Petition of Blacklidge, 359 Ill. 482.) But the issuance of an execution against the body of a defendant, even in tort actions, is prohibited by the act as amended (sec. 5 of the Judgments Act) unless 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. Prior to that amendment the issuance of the writ was not dependent upon a finding or reference to malice in the judgment, but if the action was in tort and a judgment was rendered against the defendant who committed the tort, it became the duty of the clerk to issue a capias at the request of the plaintiff. The effect of the amendment was to abolish executions against the body in tort actions in which malice is not the gist of the action, and also to forbid the issuance of a body execution even in actions in which malice is the gist of the action unless there is a special finding of malice by the court or jury. (Pappas v. Reabus, 299 Ill. App. 499.) Prior to the 1935 amendment of section 5 of the Judgments Act a capias could be issued upon any tort judgment, and a defendant apprehended under such a capias could be released on application to the county court under the provisions of the Insolvent Debtors Act (Ill. Rev. Stat. 1943, ch. 72 [Jones Ill. Stats. Ann. 109.378 et seq.]), provided the latter court determined that malice was not the gist of the action; and when defendant made application for his release, an issue was raised in the county court as to whether malice was or was not the gist of the action. But since the amendment of 1935 it is no longer necessary or proper to go into the county court to determine that issue. If the clerk of a court issues a capias in a tort case and defendant desires to challenge the action of the court, he may apply to the court in which the judgment was rendered to have the writ quashed. Thus, if the defendant against whom a body execution has been issued, desires to question the sufficiency of the finding of malice in the judgment, he may do so by making a motion to quash the writ upon that ground. (Ingalls v. Raklios, 373 Ill. 404.) Malice has been defined as applying to that class of wrongs which are inflicted with an evil intent, design or purpose, implying that the guilty party was actuated by improper or dishonest motives, and it is therefore understandable that the legislature should have provided for imprisonment of tortfeasors in cases where malice exists. Nevertheless, even in that class of cases the legislature has safeguarded the liberty of an individual by providing that he shall not be imprisoned until after a full hearing and unless it shall appear from a special finding of the court or jury that malice is the gist of the action, and until his motion challenging the capias, if he makes such a motion, has been overruled. In view of these circumstances it seems ironical, in a judgment arising out of contract, where no evil intent, design or purpose is implied, that the judgment debtor should be committed without any opportunity whatever to voice his objection, however valid it may be. In contempt procéedings where guilt may be punishable by either fine or imprisonment, the respondent is afforded an opportunity to file a denial of the charges made against him, and in some instances to purge himselfeby his verified answer.

It is suggested, however, that a debtor may later purge himself of a false accusation through proceedings in the county gourt under the Insolvent Debtors Act and thus effect his release. The remedy suggested does not constitute a safeguard against imprisonment because he can have recourse to the remedy only after he has been arrested and imprisoned, and Ms personal liberty is certainly just as valuable a right before his arrest as it is after he has been committed.

The trend of social justice has steadily advanced in this country for upward of a century. In Tuttle v. Wilson, 24 Ill. 553, the court traces the departure by legislative enactment from what Mr. Justice Breese characterized as “the barbaric age of the law in this country” before Illinois was admitted to the union, when debtors in all states, except Tennessee, could be deprived of “the inestimable right” of personal liberty for their failure to pay an honest debt and kept in custody “for the misfortune of being poor.” As shown in the Tuttle case, the constitution adopted in 1818, like that of 1848, contained provisions identical with section 12 of article II of our present organic law, but the first General Assembly failed to observe the then novel provision against imprisonment for debt. However, at the second session they passed an Act, approved in 1819, by which process by capias was recognized in substantially all actions. It provided that “if, upon a capias, the sheriff shall take the body of the defendant, he shall commit him to the common jail of the county, or take a bond to himself. . . .” All the rigor known to the common law marked the preliminary proceedings, and to incarcerate a debtor of that day no affidavit was required. But, as stated in the Tuttle case, “to our credit be it said, the law did not so remain but for a short time.” At the first session ef the second General Assembly an Act was passed in January 1821 providing for special bail in lieu of the appearance bail required in all cases under the Act of 1819, and further providing that in no case could bail be required unless the plaintiff should first make an affidavit before the clerk of the court that he verily believed he would be in danger of losing his demand or the benefit of whatever judgment he might obtain. The third session of the General Assembly passed an Act, approved in February 1823, which provided that no person should thereafter be imprisoned for debt except for the causes therein set forth; but when any execution issued, it should be the duty of the officer serving it to levy upon and sell the debtor’s property or so much of it as might be necessary to satisfy the execution; and if it appeared by the return of the officer that the defendant had no property, his body could not be arrested by any process whatever unless the plaintiff, his agent or attorney, should swear before some justice of the peace or judge of the circuit court that he verily believed that the defendant intended, or was about to remove or abscond out of the county in which the judgment was obtained or in which the defendant resided, in which case it was lawful to issue a ca. sa. against the body of the defendant, and commit him to jail, there to remain until he took the oath of insolvency, as prescribed by the Act of 1821, or gave sufficient security that he would not depart from the county for two years. It was further provided that if the plaintiff, his agent or attorney, should make affidavit before a justice of the peace, the truth thereof to be ascertained by a jury of not less than six householders nor more than twelve, that he verily believed that defendant had hid, concealed or transferred' any equity, chose in action, or any species or description of property whatever for the purpose of defrauding the plaintiff, the body of the defendant could be arrested and committed to jail, there to remain until he should be released by taking and subscribing the oath of insolvency. Thus the law remained, with slight alterations, until the revision of the statute in 1845, which provided that when a debtor refused to surrender his estate, etc., the judgment creditor might obtain a body execution from the clerk of the court by presenting an affidavit setting forth facts constituting fraud. Finally, in 1872, the statute was amended so as to require a court order for the issuance of a body execution. This was a significant change, because it indicated an intention on the part of the legislature that a judicial determination should be had before the debtor could be committed, thus constituting an additional safeguard against unjust imprisonment.

During the years that have intervened since 1818, our courts have interpreted the various statutes passed in pursuance of the constitutional prohibition of imprisonment for debt with the most searching scrutiny, and have always been zealous to safeguard the personal liberty of the individual. Thus, in the early case of Fergus v. Hoard (1854), 15 Ill. 357, a divided court held that it was not necessary in the required affidavit to state that the defendant had property which he refused to surrender, that fact being implied in the statement that he refused to surrender his property, and that a personal demand on defendant by the sheriff to surrender his estate, lands, etc. in satisfaction of an execution was not necessary. But in the Tuttle case, decided six years later, the Supreme Court said they had examined the ruling in the Fergus case “critically,” and were “disposed to think it should be somewhat modified — that something more should be required to make the affidavit sufficient,” namely, an allegation that the defendant had estate, lands and tenements, goods or chattels, liable to be seized and sold on execution, “specifying them as near as may be,” and that he refused to surrender them after a personal demand upon him to do so; and because the affidavit in the Tuttle case merely alleged that defendant had “property and estate,” instead of “estate, lands and tenements, goods and chattels,” as prescribed by the statute, and no demand had been made on defendant, the court held the affidavit “destitute of those necessary averments” and insufficient as a foundation for the ca. sa.

In the interim between the Fergus and Tuttle cases, the Supreme Court in Gorton v. Frizzell, 20 Ill. 291, reversed judgment against a sheriff for escape of a party arrested under a capias, because the attached affidavit contained no averment that defendant had money which could be appropriated to the debt or that defendant had any property or that such as he may have had was not exempt from execution, “and besides,” said the court, “the affidavit is in the alternative, and does not set forth the circumstances on which the presumption of fraud can be raised.”

These decisions clearly indicate that the courts in this state have never relaxed the exact requirements of the statute, and even in the earliest days safeguarded the constitutional immunity from imprisonment for civil debts. In recent decisions the trend toward preserving the personal liberty of the individual has been even more marked.

In People v. LaMothe, 331 Ill. 351, defendants were cited for contempt in refusing to comply with a decree ordering them to pay over to a receiver money paid in to the capital stock of a corporation, the organization of which was abandoned. The Supreme Court, in reversing an order of commitment, said that “In the enforcement of this constitutional provision [sec. 12 of art. II of the state constitution, which prohibits imprisonment for debt] every doubt should be resolved in favor of the liberty of the citizen. ' No one should be imprisoned for a failure to pay money unless the evidence clearly shows that the party charged has the money within his power to pay, or that he had the money and wrongfully disposed of it. . . . No. man can be legally imprisoned for a failure to pay over money he does not have and never had.” In Tudor v. Firebaugh, 364 Ill. 283, the question arose whether respondent, as trustee, could be adjudged in contempt and imprisoned under the statute for his refusal to pay over money received and wrongfully withheld. The court said that the statute should not be construed to authorize imprisonment in the first instance merely because of failure to pay a money decree, as the statutory provision for imprisonment was for wilful defiance and not merely for failure to comply with the decree where the disobedience is not wilful, and again said that “In the enforcement of this constitutional provision every doubt should be resolved in favor of the liberty of the citizen. No one should be imprisoned for a failure to pay money unless the evidence clearly shows that the party charged has the money within his power to pay, or that he had the money and wrongfully disposed of it.” In Peiffer v. French, 376 Ill. 376, the attitude of the Supreme Court of this state toward the law permitting the practice of incarcerating individuals because of their inability to pay judgments against them in civil cases has recently been expressed in no uncertain language as follows: “Laws in derogation of the liberty of a citizen must be strictly construed, and to justify any imprisonment for tort, which is contrary to the general tendency of our times, statutory requirements must be meticulously observed. ” In In re Estate of Rackliffe, 366 Ill. 22, the probate court, on hearing’ of a petition for the appointment of a conservator, ordered a witness to turn over to the conservator certain bonds in her possession as belonging to the incompetent, the witness having claimed the bonds were given to her. The order was entered without any citation or proper hearing of the issue of ownership, the witness being in court only by subpoena. In reversing the order the Supreme Court said: “It is an elementary principle of jurisprudence in all civilized countries that before property or liberty may be taken from an individual he shall have an opportunity-to be heard on charges brought against him. This is a rule so universal in its application to all common law, chancery or statutory proceedings that there is general agreement that no court has power otherwise to divest a person of property or punish him. In fact the recognition of that basic principle of justice is so widespread that courts are now seldom called upon to restore rights of individuals so ruthlessly taken from them. (Leininger v. Reichle, 317 Ill. 625; Heppe v. Szczepanski, 209 id. 88; Botsford v. O’Conner, 57 id. 72.)” (Italics mine.)

I can conceive of instances where cogent reasons would require a court to deny the application for a body execution. One of these reasons is present in this proceeding. Plaintiff’s affidavit alleged “that the judgment debtor herein has estate, goods, chattels, lands or tenements not exempt from execution which he unjustly refuses to surrender and that he [plaintiff] verily believes that . . . the judgment debtor herein has, since the debt was contracted, or the cause of action accrued, fraudulently concealed or otherwise disposed of a large part of his estate with a design to secure the same to his own use and to defraud his creditors.” These allegations are of a general nature and do not in any sense “as near as may he” (Tuttle v. Wilson, supra) specify the estate, lands, etc. to be seized and sold on execution. The only attempt in plaintiff’s affidavit to specify the property which defendant was charged with fraudulently concealing relates to a chattel mortgage given by the judgment debtor and his wife to Sol E. Fuchs several months before judgment was entered against defendant and almost two years before the application for a body attachment was made, which plaintiff “verily believes . . . was executed by the judgment debtor herein without consideration” and “for the purpose of fraudulently concealing and disposing of a part of the estate of the judgment debtor herein with a design to secure the same to his own use and to defraud his creditors.” When defendant was notified in writing of plaintiff’s motion, he filed written objections to the application, denying that he had any assets, goods, etc. which were not exempt from execution, denying that the mortgage was fraudulently given, and' averring affirmatively that “plaintiff herein has attempted to set aside said mortgage by making the mortgagee a garnishee in the above entitled cause; that a hearing was had in said proceeding and the Municipal Court of Chicago found that the mortgage was valid and discharged the mortgagee as garnishee.” It was defendant’s contention that the finding and judgment in the garnishment proceeding constituted an adjudication that no fraud had been committed by him in conveying the mortgaged property to Fuchs, and that plaintiff’s affidavit touching upon the identical chattels that he had sought to reach in the garnishment proceeding, was merely an attempt to relitigate the validity of the mortgage and the charges of fraud. The opinion holds squarely that the defense of res judicata to plaintiff’s application for a body execution could not be interposed or considered because “there is no provision in the statute that even permitted him to participate in this proceeding in the court below.” If this narrow interpretation of the statute were to.be followed, any judgment debtor could be summarily arrested and imprisoned, and the enunciation of the courts that every doubt should be resolved in favor of the liberty of the citizen would become a mockery, for there would be no way by which he could apprise the court of any conceivable reason or defense which would enable it to determine whether a reasonable doubt existed.

There is no denial anywhere in plaintiff’s briefs that the garnishment proceeding was determined adversely to him. The record shows, and he admits, that an order was entered in the garnishment proceeding finding the issues against plaintiff and discharging the garnishee. He says he is even willing to assume “for the sake of argument that the defense of res adjudicaba can, in a-proper case, be made to, an application for a body execution;” but he argues that such defense would be unavailing here because “the garnishment proceedings in question and the motion of the plaintiff did not involve the same cause of action and the same parties”; that “the issue therein was whether or not the garnishee was indebted to., or had effects or estate of, the defendant in his possession, custody and charge”; that “the order discharging the garnishee thus decided merely that the garnishee was not so indebted to the defendant and did not so have effects or estate of the defendant in his possession, custody or charge”; and that “it [the court], did not, and could not, determine the validity of the chattel mortgage in question, which, the defendant claims, forms the issue in this case.” We recently held in Fidelity Coal Co. v. Diamond, 322 Ill. App. 229, and in Morris v. Beatty, 323 Ill. App. 390, that garnishment is practically synonymous with a creditors’ bill and that in a garnishment proceeding the court exercises equitable jurisdiction and may make full inquiry as to the rights of the parties. Of course, the chattel mortgage of which plaintiff speaks in the garnishment proceeding is the identical one which he .describes in his affidavit for a body attachment. The record does not disclose this fact, but it would be naive,, in view of plaintiff’s admission and the space he devotes in his briefs to the argument touching upon the question of res judicata as a defense, to entertain any doubt about it. Since plaintiff undoubtedly garnisheed Fuchs on the theory that he could prove the chattel mortgage was fraudulently made and without consideration, the municipal court in the garnishment proceeding was called upon to determine its validity. If it was a valid mortgage, then Fuchs had no effects or estate belonging to defendant; if, on the other hand, it was fraudulently made, the mortgage was void and the chattels conveyed to Fuchs still belonged to defendant and were subject to garnishment. From a reading of plaintiff’s briefs no other conclusion is possible; and having once submitted the issue to the municipal court, resulting in a judgment and finding against him, he should not be permitted' to relitigate the question or press the same charges of fraud as a basis for defendant’s arrest and imprisonment; and if the court knew or was apprised of these facts it was certainly bound to judicially determine that plaintiff’s affidavit did not show probable cause.

The authorities are generally to the effect that the principal action and the garnishment proceeding, when it is in aid of execution, are regarded as constituting a single suit (38 C. J. S. Garnishment, sec. 2a (4), p. 206, and cases there cited). In Senelich for use of Home Bank & Trust Co., v. Mann, 239 Ill. App. 589, the court adopted the definition set forth in Encyclopedia of Law and Procedure, vol. 20, p. 979, as follows: “Garnishment is in no sense a new suit, but is a special auxiliary remedy for more effectually reaching defendant’s credits, and is always ancillary to the main action under which it is brought.” In Freeport Motor Casualty Co. v Madden, 354 Ill. 486, the court, speaking of garnishment, said that “it is not an independent proceeding but is ancillary or auxiliary. It depends upon another proceeding in law or equity. It is entirely remedial, and is resorted to either in aid of a pending action or in aid of an execution issued on a judgment already recovered.” In Dennison v. Taylor, 142 Ill. 45, the court held that a proceeding against a garnishee is not a collateral proceeding to the original action, but is ancillary to the controversy between plaintiff and defendant and a part of the same suit. In Willson v. Pennoyer, 93 Minn. 348, it was likewise held that a garnishment proceeding “is not a separate or independent action, but, on the contrary, is incidental or ancillary to the main action against defendant.” See also Bowen v. Port Huron Engine & Thresher Co., 109 Iowa 255. And of course the application for a body execution would necessarily also be regarded as part of the original suit or proceeding. If we assume that to be a correct statement of the law, the court would take judicial cognizance of its own record, and when defendant interposed the objection that the validity of the mortgage had previously been adjudicated in the garnishment proceeding, the court would naturally entertain grave doubts as to the truth of plaintiff’s, affidavit in determining whether or not probable cause was shown.

Plaintiff argues that notice to the judgment debtor of the application for a body execution and an opportunity to object thereto, would defeat the purpose of the statute by allowing the debtor to escape or leave the jurisdiction before he could be committed. The law is clear, however, that among the procedural steps necessarily required before a capias will issue, a demand must be made and the debtor must be informed that he will be liable to arrest if he fails to comply. Maher v. Huette, 10 Ill. App., 56. Thus, if he desired to leave the jurisdiction, he could do so after demand had been made and before the application could be presented to the court.

These parties were not creditor and debtor in the ordinary sense. They are both lawyers and had been associated in practice for 24 years. When they separated defendant gave plaintiff an I.O.U. for rent, upon which judgment was obtained. When an execution issued defendant filed a sworn schedule, stating that he was the head of a family consisting of himself, wife and two children, and listed certain household furniture, an office desk and a 1933 Pierce-Arrow automobile, all subject to the same chattel mortgage here under discussion. Plaintiff then sought to reach the mortgaged chattels throúgh garnishment, upon the theory that the mortgage was fraudulent and given without consideration, and having failed in that ancillary proceeding, he still had an adequate remedy, under chapter 37, par. 424, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 108.092], to proceed through a citation to examine defendant and “other witnesses as upon the trial of any action” to determine the validity of the mortgage and reach any assets that defendant might have had which were not exempt from execution; but he was evidently more intent upon incarcerating his former associate than on collecting his judgment and therefore sought the body execution on the basis of an affidavit which again challenged the validity of the mortgage in another form. This ruthless procedure shocks the conscience, and I think it would have been a denial of justice for the court to grant the application for defendant’s arrest and imprisonment, without considering the validity of his defense of res judicata in determining as a matter of law whether plaintiff’s affidavit showed probable cause.