Sulzberger v. Goldstein

Mr. Justice Adams delivered the opinion of the court. Appellant’s attorney, before a jury was called, offered in evidence the justice’s transcript, and moved the court, on the transcript, to remand the appellee to custody, which motion the court overruled. Counsel cite numerous cases to the effect that whether malice is the gist of an action must be determined by inspection of the record; that is, by inspection of the pleadings, showing what the issues were. The cases cited are all cases in courts of record, in which, consequently, pleadings are required, and have no application whatever to cases before justices of the peace, in which there are no written pleadings. Counsel for appellant correctly say that, in the court of a justice of the peace the action is what the evidence makes it, citing Blattau v. Evans, 57 Ill. App., 311; Block v. Blum, 33 ib., 644; Steele v. Hill, 35 ib. 211, and Swingley v. Haynes, 22 Ill. 214. This being true, the County Court could not determine, from the transcript of the proceedings before the justice, what the nature of the action was, or whether malice was of the gist of the action; because the evidence before the justice is not preserved in the transcript, or in any other way. Therefore, the court properly refused to grant appellant’s motion. Moreover, appellee was entitled, under section 5 of the Insolvent Debtor’s Act, to have the question whether he was guilty of fraud, as counsel chargé, tried by jury. Counsel contend that the verdict is against the weight of the evidence, and that some of thé instructions are erroneous; but we do not think it necessary to discuss these contentions, as we think the judgment must be affirmed on a ground not discussed by counsel. The action was for a tort, as clearly appears from the evidence, and as appellant’s counsel claim. Section 3 of article 11 of the act in relation to justices of the peace and constables is as follows: “Upon all judgments in actions of tort, or where the defendant is in custody, or has been held to bail upon a capias, as provided in this act, the justice may issue an execution against the body or goods and chattels of the defendant, at the election of the plaintiff.” Hurd’s Stat. 1903, p. 1167. Election is “the act of choosing.” As used in the law, it is thus defined: “Law: The choice made by a party of two alternatives, by taking one of which the chooser is excluded from the other.”. Webster’s Dictionary. The- word election is generally used, in the law, in a case where a party has two inconsistent-remedies; but no question as to inconsistent remedies can arise under section 3, because the section expressly mentions two things and requires the plaintiff to elect between the two, namely, between an execution against the body and an execution against the goods and chattels of the defendant. The section cannot he otherwise understood, without practically eliminating from it the words “or” and “election,” which would he contrary to the fundamental rule that effect must be given, if possible, to every word of a statute. Had the legislature intended that a plaintiff should, in cases ex delicto, have both remedies, it would have been so expressed, as in the case of a fine imposed by a justice, in the exercise of ' his criminal jurisdiction. ■ ■ Sections 7 and 8 of article 18, chapter 79, authorize the justice, when a fine is imposed, to issue, first, execution against the goods and chattels of the defendant, and, if the same shall be returned nulla bona, to issue a capias against the body of the defendant-. Hurd’s Stat. 1903, p. 1173. The transcript of the proceedings before the justice, in this case, was put in evidence by appellant, and shows that Hay 23, 1903, the appellant caused an execution to be issued against the goods and chattels of appellee. This was an election, and, therefore, the capias issued October 19, 1903, was unauthorizéd by law. While appellee might have been discharged on habeas corpus, and perhaps such was the proper remedy, appellant is not in a position to object to the remedy pursued, and substantial justice having been done by the judgment discharging appellee from imprisonment, the judgment will be affirmed. Affirmed.