Bowden v. Bowden

• Decision Date: 30 September 1874
• Citation: 75 Ill. 143,1874 WL 9206
• Parties: RICHARD BOWDENv.WILLIAM BOWDEN.
• Court: Illinois Supreme Court

75 Ill. 143

1874 WL 9206 (Ill.)

RICHARD BOWDEN

v.WILLIAM BOWDEN.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Jo Daviess county; the Hon. WILLIAM BROWN, Judge, presiding.

This was an application to the county court of Jo Daviess county, by William Bowden, to be discharged from imprisonment for debt under a ca. sa. issued against him upon a judgment in favor of Richard Bowden, and taken by appeal to the circuit court. The facts of the case are substantially stated in the opinion.

Messrs. D. & T. J. SHEEAN, for the plaintiff in error.

Mr. M. Y. JOHNSON, and Mr. JOHN W. LUKE, for the defendant in error.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was a proceeding under chapter 72, entitled “Insolvent Debtors,” in force July 1, 1872.

It appears defendant was arrested on a ca. sa. issued on the affidavit of appellant and at his suit, charging him with refusing to surrender his estate for the payment of a judgment appellant had obtained against him in the circuit court of Jo Daviess county, and with fraud in disposing of his property to prevent the levy of appellant's execution thereon. On being brought before the judge of the county court, he demanded to have the question whether he was guilty of such fraud or had refused to surrender his estate, tried by a jury. A jury was empannelled, who found the defendant guilty, and he was remanded to the custody of the officer. A motion for a new trial was refused, and judgment entered against the defendant for costs. An appeal was prayed to the circuit court, which was granted, and a bond executed in such amount and with such security as was approved by the court, conditioned according to law. On the execution of the bond the county court discharged the defendant from custody, to all which the appellant excepted.

In the circuit court a motion was made to dismiss the appeal, which was denied, and on trial then by a jury, the defendant was found not guilty

A motion for a new trial was overruled, and judgment rendered against appellant here for costs.

The first point made by appellant is, the circuit court erred in refusing to dismiss the appeal, he insisting that the county court had no right to allow an appeal. He contends that the statute does not allow an appeal in such a case, and after quoting that part of sec. 5 of the statute, which reads, “if the debtor shall be found guilty of such fraud or refusal, he shall be remanded to the custody of the proper officer, but such finding shall not prevent his availing of the other provisions of the act,” he argues, that the order of remandment is a ministerial rather than a judicial act; that when the debtor is found guilty that is the end of that mode of effecting a release, and he is taken back to jail, being remanded there by the ministerial act of the court -- that no judgment or judicial order sends him back, but the verdict of the jury does it -- that there is no provision of the statute that he shall be adjudged guilty upon the verdict, and no judgment of guilt is entered against him; that after a verdict of guilty no other step could be taken by the debtor but to schedule. He further contends, that sec. 26, which provides, “any debtor or creditor who may feel himself aggrieved by any final order or judgment of the county court under the provisions of this act, may, at any time within ten days from entering such order or judgment, appeal to the circuit court of the county, upon giving bond in such amount and with such security as shall be approved by the county court,” has no application to the case at the stage it had reached, as there was no final order, and not even a judgment for costs; that this section has relation only to proceedings where a schedule is presented, and to acts and orders consequent thereupon.

We cannot concur in this view of the statute. The order remanding the debtor, is not a ministerial, but a judicial act. The court is required by the statute to remand the debtor to the custody of the officer if he is found guilty. It is the sentence of the law on the facts found by the jury, and which the court judicially pronounced, as is shown by the record. This terminated the controversy, and was for all purposes a final order or judgment in that case. If this be so, then by sec. 26, above quoted, an appeal lay, and the court did not err in refusing to dismiss it on motion.

We cannot concur in the view appellant presents, in regard to scheduling. A debtor arrested on a ca....