Peiffer v. French

Mr. Justice Shaw delivered the opinion of the court: The circuit court of Cook county quashed a writ of capias ad satisfaciendum 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. 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 ad satisfaciendum 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 ad satisfaciendum 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 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 in Ingalls v. Raklios, 373 Ill. 404, that to comply with the statute, the judgment must contain a finding that malice is the gist of the action and that that finding must appear on the face of the judgment. A capias ad satisfaciendum is not lawful unless the court, if the case is tried without a jury, includes in its judgment a special finding that malice is the gist of the action. In a case submitted to a jury the jury must make a special finding of facts from which it shall appear that malice was the gist of the action. In such a case the judgment must include a special finding that malice was the gist of the action. The judgment in this case did not include a special finding that malice was the gist of the action. We pointed out in the Raklios case, supra, that a defendant might even be actuated by malice in the commission of a tort, and yet that malice not be the gist of the action. The same is true of recklessness or other misconduct. 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 this case, the statutory requirement was not complied with and no writ of capias ad satisfaciendum should have been issued. 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 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.