Seney v. Knight

Mr. Justice Thompson delivered the opinion of the court: Appellants, Edgar F. Seney and Rowland T. Rogers, petitioned the county court of Cook county praying release from imprisonment under writs of capias ad satisfaciendum issued from the municipal court in an action of the first class for the recovery of damages for the conversion of personal property. Appellants contended that malice was' not the gist of the action in said cause and that they were entitled to release under the Insolvent Debtors act. Upon a hearing the county court found that malice was the gist of the action in which the writs were issued, and thereupon 'remanded the petitioners to the custody of the sheriff, to be held under said writs. An appeal was prayed and perfected. and the causes were consolidated for hearing. On appeal the Appellate Court for the First District affirmed the judgments of the county court of Cook county and granted a certificate of importance. The cause is brought here by appeal to review that judgment. The judgment of the municipal court in the original proceeding was conclusive as to every matter properly and necessarily at issue in the action, and if it appeared from the pleadings that malice was the gist of the entire action the doctrine of res jttdicata would apply. (Jernberg v. Mix, 199 Ill. 254.) Appellee in his statement of claim filed in the municipal court charged appellants with having willfully, maliciously, tortiously and fraudulently converted certain bonds and notes of the value of $60,000 to their own use, for the purpose and with' the intent to cheat and defraud him of his property. The jury by their verdict found appellants guilty of having willfully, maliciously, tortiously and fraudulently converted appellee’s property to their own use with the intent to cheat and defraud appellee and assessed appellee’s damages at $58,800. The judgment entered on this verdict was affirmed by this court in Knight v. Seney, 290 Ill. 11. This decision is res judicata of the question of fraudulent conversion. The term “malice,” as used in the Insolvent Debtors act, applies to that class of wrongs which are inflicted with an evil intent, design or purpose. It implies that the guilty party was actuated by improper or dishonest motives and requires the intentional perpetration of an injury or a wrong on another. (Jernberg v. Mix, supra; Kellar v. Norton, 228 Ill. 356; In re Murphy, 109 id. 31; First Nat. Bank v. Burkett, 101 id. 391.) To entitle a defendant to be discharged from imprisonment it must appear that the wrong for which the action was brought was not of that character. The gist of an action is the essential ground or prin-. cipal subject' matter without which the action could not be maintained. (Jernberg v. Mix, supra; First Nat. Bank v. Burkett, supra; Kitson v. Farwell, 132 Ill. 327.) Appellee’s statement of claim charged the conversion to have been maliciously and fraudulently done, and appellants denied the charge. The issue thus formed was decided adversely to appellants and it is now res judicata. The county court properly held that malice was the gist of the action in the municipal court. It is earnestly contended by appellants that this is an action in trover; that the gist of such an action is the unlawful conversion of the property, and that under no circumstances can malice become the gist of an action in trover. It is also contended that malice cannot be the gist of any action where the cause is brought as a first-class case in the municipal court, and that actions in tort in the municipal court cannot be brought where the amount is .in excess of $1000. The municipal court has jurisdiction in the following cases of the first class: (a) All actions on contracts, express or implied; (&) all actions for the recovery of personal property; and (c) all actions for the recovery of damages for the conversion of or injuries to personal property when the amount involved in said cases exceeds $1000. (Hurd’s Stat. 1917, p. 890.) It hardly seems necessary to assert- that the statute plainly provides that the municipal court shall have jurisdiction in “all actions for the recovery of damages for the conversion of personal property.” While all actions in cases of the first class under division (a) are ex contractu, actions under divisions (b) and (c) may be ex delicto. All actions ex delicto for the recovery of damages for conversion of personal property are necessarily in the nature of trover, trespass or case. Actions ex delicto are actions of tort. Trover is an action of tort, and it is technically one of the forms of trespass on the case. (21 Cyc. of Pl. & Pr. 1013.) It is true that this proceeding is similar to the common law action of trover, but, regardless of its technical name, there is nothing to prevent malice being the gist of this action if it is properly pleaded. There is nothing in the Municipal Court act which prevents the. bringing of an action in tort where the amount exceeds $1000. When the subject matter there under consideration is considered, our holdings in Chudnovski v. Eckels, 232 Ill. 312, and in Arnold v. Dodson, 272 id. 377, are not contrary to the view here expressed. The actions there under consideration were actions of assumpsit, and actions of assumpsit could not be brought as class x cases in the municipal court unless the amount involved was more than $1000. Actions of tort growing out of personal injuries, and other causes of action not covered by divisions (b) and (c) of cases of the first class where the amount involved is more than $1000, are not within the jurisdiction of the municipal court. But all actions for the recovery of damages for the conversion of personal property, whether of tort or otherwise, are within the jurisdiction of the municipal court as class 1 cases where the damages exceed $1000. The court does not lose jurisdiction of such actions where malice is the gist of the action. The judgment of the Appellate Court is affirmed. Judgment affirmed.