194 F.2d 452 (6th Cir. 1952), 11299, National Discount Corp. v. O'Mell

Docket Nº:11299.
Citation:194 F.2d 452
Party Name:NATIONAL DISCOUNT CORP. et al. v. O'MELL.
Case Date:February 18, 1952
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 452

194 F.2d 452 (6th Cir. 1952)

NATIONAL DISCOUNT CORP. et al.

v.

O'MELL.

No. 11299.

United States Court of Appeals, Sixth Circuit.

February 18, 1952

Page 453

Louis Rosenzweig, Detroit, Mich., for appellants.

Hugh K. Davidson, Detroit, Mich., for appellee.

Before ALLEN, McALLISTER and MILLER, Circuit Judges.

MILLER, Circuit Judge.

The appellant, National Discount Corporation, recovered a judgment in the U.S. District Court against the appellee, Samuel O'Mell, Jr., in the amount of $7, 570.24 with costs, under which there was issued body execution, followed by the arrest and imprisonment of the appellee by the United States Marshal. Thereupon, the appellee filed a petition for writ of habeas corpus in the same court. The District Judge entered an order discharging the appellee from custody, from which the Corporation and the United States Marshal have appealed.

The legality of the arrest and imprisonment depends upon the prior proceedings in the District Court in which the money judgment was obtained and body execution

Page 454

issued. Rule 69, Rules of Civil Procedure, 28 U.S.C.A., provides that process of enforce a judgment for the payment of money shall be a writ of execution, and that the procedure on execution shall be in accordance with the practice and procedure of the State in which the District Court is held, except that any statute of the United States governs to the extent it is applicable. The parties agree that there is no applicable statute of the United States, and that the legality of the body execution depends upon the law of Michigan.

Article 2, Sec. 20 of the Constitution of Michigan provides 'No person shall be imprisoned for debt arising out of, or founded on a contract, express or implied, except in cases of fraud or breach of trust, or of moneys collected by public officers or in any professional employment.' In keeping with this constitutional provision, the Michigan statutes authorize the issuance of a capias ad satisfaciendum in tort actions and in the contract actions permitted by the constitution. The issuance of a capias ad satisfaciendum in other kinds of contract actions is not only not authorized, but is void as being prohibited by the Constitution. Secs. 27.1503, 27.741, 27.742 M.S.A., Comp. Laws 1948, Secs. 623.3, 613.11, 613.12; Lindow v. Mudge, 266 Mich. 11, 253 N.W. 196; Kirker v. Larson, 254 Mich. 648, 236 N.W. 896. Accordingly, the legality of the body execution herein under attack is controlled by the nature of the action in which the judgment was recovered.

The District Judge was of the opinion that the capias ad satisfaciendum was not authorized. Appellants apparently concede that the original action was not the kind of a contract action in which a capias ad satisfaciendum could issue, but contend that it was an action in tort and that the capias was therefore lawfully issued and executed. This requires an analysis of the complaint.

The complaint states that the appellee was the owner of certain automobiles therein specifically described, and that he borrowed from the appellant corporation certain monies on said automobiles in the total amount of $7, 095, a specified amount being given with respect to each described automobile; that to secure said loans, the appellee executed chattel mortgages against the automobiles in the amounts set out, together with a chattel mortgage against certain office fixtures in the amount of $100.00; that the appellee had failed and refused to pay the monies borrowed; that the appellant corporation had made demand for the delivery to it of the automobiles and property, which demand had been refused; that the appellee had disposed of and converted the automobiles and property so described to his own without having paid the mortgages; and that 'in addition to the principal amounts above set forth, there is due to the plaintiff interest thereon at the rate of seven (7%) per cent per annum from the date of demand of possession of said automobiles.' The prayer merely asked 'judgment against the defendant in the amount of Ten Thousand ($10, 000.00) Dollars.' The opening sentence of the complaint states that the plaintiff 'complains of the defendant in a plea of trespass on the case and for its cause of action, says: * * * .' Although under Rule 2, Rules of Civil Procedure, there is only one form of action, it is often necessary for the Court to consider the nature of the action in order to determine the proper procedure or the nature or extent of the relief to which the plaintiff may be entitled. For example, the distinction between legal and equitable causes is still preserved with a resulting difference in procedure. Gatliff Coal Co. v. Cox, 6 Cir., 142 F.2d 876; Bereslavsky v. Kloeb, 6 Cir., 162 F.2d 862, certiorari denied 332 U.S. 816, 68 S.Ct. 156, 92 L.Ed. 393. The selection of what statute of limitations is applicable depends upon the inherent nature of the claim. Williamson v. Columbia Gas and Electric Corp., 3 Cir., 110 F.2d 15, certiorari denied 310 U.S. 639, 60 S.Ct. 1087, 84 L.Ed. 1407. It at times becomes necessary to determine whether the action is one in rem or in personam. Norrie v. Lohman, 2 Cir., 16 F.2d 355, 358. Also whether an action is one ex contractu or ex delicto determines whether exemplary damages can be recovered in addition to reasonable compensation. Peitzman v. City of Illmo, 8 Cir., 141 F.2d 956, 961. The nature of the cause of action depends upon the allegations in the complaint considered as

Page 455

a whole. If the complaint states facts showing that the action is upon a contract, it will be considered as an action ex contractu even though the complaint alleges a conversion and seeks remedies ex delicto. Parker State Bank v. Pennington, 8 Cir., 9 F.2d 966, 970; Minez v. Merrill, D.C.S.D.N.Y., 43 F.2d 201; Genuine Panama Hat Works, Inc. v. Webb, D.C.S.D.N.Y., 36 F.2d 265, 267. Although the complaint may state that it is an action in tort, as it died in the present case, such an allegation is not controlling, and the Court will determine from the complaint whether the action is one in tort or one in contract. Dallas v. Garras, 306 Mich. 313, 316, 10 N.W.2d 897; Thrift v. Haner, 286 Mich. 495, 497, 282 N.W. 219.

In the present case, the complaint alleges both borrowed money with a refusal to repay and a conversion of themortgaged property by the appellee. This is indicative of...

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