Campbell v. Klahr

• Citation: 149 A. 770,111 Conn. 225
• Court: Supreme Court of Connecticut
• Decision Date: 31 March 1930
• Parties: CAMPBELL v. KLAHR ET AL.

149 A. 770

111 Conn. 225

CAMPBELL v. KLAHR ET AL.

Supreme Court of Errors of Connecticut.

March 31, 1930

Appeal from Superior Court, Fairfield County; Carl Foster and Newell Jennings, Judges.

Action by Walter E. Campbell against Samuel J. Klahr and another claiming an injunction restraining the defendants from serving an execution upon the body of the plaintiff. A demurrer to the complaint was overruled, and issues tried to the court. Judgment for defendants, and plaintiff appeals.

No error.

Harry Schwartz, of Bridgeport, for appellant.

Joseph G. Shapiro, Harry Allison Goldstein, and Charles S. Brody all of Bridgeport, for appellees.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

MALTBIE, J.

The defendant Klahr secured a judgment for damages by reason of an assault committed upon him by the plaintiff. Klahr took out execution upon the judgment, which directed any proper officer to levy it upon the goods, chattels, or land of the plaintiff or for want thereof upon his body. This execution was delivered to the defendant Elson, a sheriff of the city of Bridgeport. He made diligent search for property of the plaintiff, but, finding none, was threatening to arrest the body of the plaintiff when he was restrained by a temporary injunction in this action. The trial court on the trial having given judgment for the defendant, the plaintiff brings this appeal.

The sole question at issue is whether or not in the present state of our statutes an execution may be served upon the body of a defendant in a tort action of this nature. As the law stood previous to 1917, an execution might, where personal estate sufficient to satisfy the debt and charges could not be found and the creditor would not agree to take debtor's land, be levied upon the body of a judgment debtor, unless exempt by law from imprisonment upon execution. General Statutes, Rev. 1902, § 918. The body of a debtor was exempt in actions founded on contract merely, express or implied, except in those founded on a promise to marry, or misconduct or neglect in any office or professional employment, or in actions instituted against a public officer, trustee, or a person acting in a fiduciary capacity, and also from execution for costs in actions for summary process. General Statutes, Rev. 1902, § 920. It is true that, when originally enacted, this statute exempted the body from arrest upon process, mesne or final, " founded upon contract," with exceptions as to certain actions corresponding to those found in the statute of 1902; but there can be no doubt that the revisers truly expressed the legislative will when in 1849 they made the quoted clause read " in an action founded on contract." Public Acts of 1842, May Session, c. 23; Rev. St. of 1849, p. 104.

Previous to 1917, where real or personal property was wanting attachments of the body were authorized in all complaints containing a money demand, provided the body was not exempt from imprisonment upon execution (General Statutes 1902, § 826); and, in certain actions for fraud or the fraudulent concealment of property from legal process, attachment and execution against the body were expressly authorized " to be proceeded with in all respects as in actions founded upon a tort." General Statutes 1902, § 1099. In 1917 a law was passed in these terms: " The body of the defendant in any action founded on tort, except as provided in section 1099 of the general statutes, shall not...