Bronson v. Syverson

• Decision Date: 22 November 1915
• Docket Number: 12697.
• Citation: 152 P. 1039,88 Wash. 264
• Parties: BRONSON v. SYVERSON.
• Court: Washington Supreme Court

152 P. 1039

88 Wash. 264

BRONSON v. SYVERSON.

No. 12697.

Supreme Court of Washington

November 22, 1915

Department 2. Appeal from Superior Court, Lewis County; E. H. Wright Judge.

Action by Amy D. Bronson, by Frank D. Bronson, her guardian ad litem, against Harry Syverson for seduction. Judgment for plaintiff, and execution returned unsatisfied, whereupon the judgment was amended, and an execution against the person of defendant issued, upon which he was seized and confined in jail. From an order overruling a motion for his discharge defendant appeals. Reversed and remanded, with instructions to discharge defendant.

Hayden Langhorne & Metzger, of Tacoma, and Thacker & Hancock, of Chehalis, for appellant.

G. E Hamaker, of Portland, Or., for respondent.

FULLERTON J.

The respondent, Amy D. Bronson, an infant, by her guardian, brought an action against the appellant, Harry Syverson, to recover for her seduction, stating her damages at $20,000. An answer was filed by Syverson traversing the allegations of the complaint, and setting up affirmatively facts which were thought to show want of capacity in the plaintiff to sue. The affirmative matter was denied by a reply, and the cause being thus at issue, was set for trial by the court on a day certain. On the day appointed for the trial the plaintiff appeared in person and by her counsel and announced herself ready for trial. The defendant did not appear, either in person or by his counsel, and on his counsel being called, they announced that the defendant would not further appear in the action. The court thereupon caused a jury to be impaneled, heard the evidence of the plaintiff, and submitted the cause to the jury under instructions deemed applicable thereto. The jury returned a verdict in the usual form, finding for the plaintiff and assessing her damages at $20,000. The court upon the same day entered a judgment upon the verdict to the effect that the plaintiff have and recover from the defendant the amount returned by the jury, together with her costs and disbursements. An execution was issued upon the judgment against the property of the defendant and placed in the hands of the sheriff who returned it wholly unsatisfied.

After the return of the writ the plaintiff applied to the court by petition for an amendment of the judgment, averring in the petition that the cause of action was one under which the defendant could have been arrested in virtue of the statute, and prayed that the judgment be amended by adding thereto a clause permitting the arrest of the defendant. The petition was heard without service upon or notice to the defendant, at the conclusion of which the court made the following order:

'It is therefore ordered, adjudged, and decreed that there be added to the terms of the judgment entered herein, on the 24th day of October, 1913, without otherwise in any way interfering with, changing, or modifying the terms or the meaning of said judgment, the following words, and figures, to wit: 'That the clerk of this court is hereby ordered and directed to issue an execution against the person of the defendant, and that the sheriff of Lewis county, Wash., or the sheriff of any other county in the state of Washington where the defendant may be found, shall be and is hereby required to arrest the defendant and place him in the county jail and hold him there until said judgment is paid and satisfied or until he shall be discharged according to law.'

'And it is further ordered that upon the filing and entering of this order the clerk immediately issue an execution against the person of the said defendant. Harry Syverson, directed to the sheriff of Lewis county, Wash., or to any other sheriff of any other county of the state of Washington where the defendant may be found, ordering the said sheriff to whom said execution shall be issued to forthwith arrest the said defendant, Harry Syverson, and commit him to the county jail of Lewis county, Wash., until he shall pay such judgment or thence be discharged according to law.'

Immediately on the entry of the order the clerk issued an execution thereon against the person of the defendant, on which the sheriff arrested the defendant and confined him to the jail of Lewis county. After his arrest the defendant moved for his discharge, basing his motion on a number of grounds. The motion was overruled, and an order entered accordingly. From this order the defendant appeals.

Among the grounds assigned in the motion for the discharge of the defendant was the ground that he was being imprisoned for debt, in violation of article 1, § 17, of the Constitution, which provides: 'There shall be no imprisonment for debt except in case of absconding debtors.' Our conclusion on this branch of the motion precludes the necessity of discussing the others.

The provision of the statute thought to justify the arrest of the defendant is found at section 749 of the Code (Rem. & Bal.), and reads as follows:

'The defendant may be arrested in the following cases:

'1. In an action for the recovery of damages, on a cause of action not arising out of contract, where the defendant is a nonresident of the state, or is about to remove therefrom, or where the action is for an injury to person or character, or for injuring, or for wrongfully taking, detaining, or converting property;

'2. In an action for a fine or penalty, or on a promise to marry, or for money received, or property embezzled, or fraudulently misapplied, or converted to his own use, by a public officer, or by an attorney, or by an officer or agent of a corporation in the course of his employment as such, or by any factor, agent, broker, or other person in a fiduciary capacity, or for any misconduct or neglect in office or in a professional employment;

'3. In an action to recover the possession of personal property unjustly detained, when the property, or any part thereof, has been concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff, and with intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof;

'4. When the defendant has been guilty of a fraud in contracting the debt, or incurring the obligation for which the action is brought, or in concealing or disposing of the property, for the taking, detention, or conversion of which the action is brought;

'5. When the defendant has removed or disposed of his property or is about to do so, with intent to defraud his creditors;

'6. When the action is to prevent threatened injury to or destruction of property, in which the party bringing the action has some right, interest, or title, which will be impaired or destroyed by such injury or destruction, and the danger is imminent that such property will be destroyed or its value impaired, to the injury of the plaintiff;

'7. On the final judgment or order of any court in this state while the same remains in force, when the defendant, having no property subject to execution, or not sufficient to satisfy such judgment, has money which he ought to apply in payment upon such judgment, which he refuses to apply, with intent to defraud the plaintiff, or when he refuses to comply with a legal order of the court, with intent to defraud the plaintiff; or when any one or more of the causes exist for which an arrest is allowed in the first class of cases mentioned in this section.'

Historically, this section of the statute, although in a somewhat different form, was first enacted into law by the territorial Legislature of 1854 (Laws 1854, p. 145). It was re-enacted in its original form in 1860 (Laws 1859-60, p. 18), and again in 1863 (Laws 1862-63, p. 101). In 1868 the territorial Legislature authorized the Governor of the territory to appoint 'three discreet persons as Code commissioners,' to revise, digest, and codify the statute laws of the territory, empowering the commission, when appointed, to thoroughly revise such laws, classify and arrange them under appropriate titles, reject all repealed and obsolete statutes, and 'make and incorporate into the civil, criminal, probate and justice's practice acts, such amendments as they or a majority of them shall deem advisable,' requiring the commission to report the result of the labors to the next session of the Legislature. Laws 1867-68, p. 64. The commission appointed pursuant to the act reported a number of bills, among which was one entitled 'An act to regulate the practice and proceedings in civil actions.' The bill was enacted into law by the Legislature of 1869 in the form and under the title reported by the commission. In this act the statute in question appears in the laws in its present form for the first time. Laws 1869, p. 28, § 114. It was again reenacted in the codification of 1873 (Laws 1873, p. 30); again in 1877 (Laws 1877, p. 25); and finally again in the codification of 1881 (Code of 1881, p. 53). Since 1869 there has been no change in its phraseology, and, if not repugnant to article 1, § 17, of the Constitution, remained in force as a part of the state statutes in virtue of article 27, § 2, of that instrument. Since statehood the codification of the laws have been unofficial in their inception. Each of the several codifiers has, however, included the statute in his compilation as part of the existing laws. 2 Hill's Code, § 229; Code of 1896, § 4616; 2 Ballinger's Code, § 5464; Pierce's Code, § 436; Rem. & Bal. Code, § 749.

The Code, in the chapter of which this section forms a part, and elsewhere, provides appropriate remedies for carrying the provision of the section into execution. Section 511 (Rem. &amp Bal. Code) specially provides for a writ of execution against the person; section 513, the form and contents of the writ, providing that ...