Gilman v. Joseloff

• Decision Date: 12 July 1949
• Citation: 135 Conn. 595,67 A.2d 551
• Court: Connecticut Supreme Court
• Parties: GILMAN et al. v. JOSELOFF et al.

135 Conn. 595

67 A.2d 551

GILMAN et al.

v.JOSELOFF et al.

Supreme Court of Errors of Connecticut.

June 21, 1949.

Reargument Denied July 12, 1949.

Appeal from Superior Court, New Haven County; Mellitz, Judge.

Action by Abraham Gilman and another against Hugh M. Joseloff and others for an injunction restraining the further levy of an execution on the bodies of the plaintiffs. The case was tried to the court. Judgment for defendants, and plaintiffs appeal.

No error.

Charles G. Albom, New Haven, with whom, on the brief, was Nelson Harris, New Haven, for the appellants (plaintiffs).

Reubin Kaminsky, Hartford, for the appellees (defendants).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

JENNINGS, Judge.

This is a suit for a temporary and a permanent injunction to restrain the defendants from the further levy of an execution on the bodies of the plaintiffs. The principal question to be decided is whether a levy on the body (capias ad satisfaciendum) can be made under an alias execution after an execution against property (fieri facias) has been returned partially satisfied.

The case was submitted on an agreed statement of facts. No finding is necessary where this course is adopted. On July 8, 1947, the defendant Stanley Nierwakowski recovered a judgment against the plaintiffs for $8131.71 based on common-law negligence. On February 26, 1948, he took out an execution. It did not contain a provision for attachment of the body. It was returned on April 6, 1948, partially satisfied. On April 19, 1948, he took out an alias execution for the balance due, containing a provision for attachment of the body. Demand thereunder was made of the plaintiff Gilman on May 1, 1948. Upon the refusal of Gilman to pay or to disclose any personal estate upon which levy of execution could be made, he was taken into custody by the deputy sheriff and lodged in jail. The sheriff left with the keeper of the jail an attested copy of the execution with his doings thereon indorsed. Gilman was subsequently released upon furnishing a jail limits bond. The defendants intended to complete service of the execution on the other plaintiff, Chasnoff, but were served with a temporary injunction incidental to the case at bar on May 5, 1948. Judgment was for the defendants.

Levy of execution on the body has long been regulated by statute in this state. General Statutes, Rev.1930, §§ 5786, 5801, Rev.1949, §§ 8097, 8112. The plaintiffs concede that the body is not exempt from execution in ordinary tort actions. The recent history of the Connecticut statutes was reviewed in Campbell v. Klahr, 111 Conn. 225, 149 A. 770. They have not been amended since that time. See also 1 Swift's Digest, Chap. 26, p. 794; 7 Yale L.J. 295.

No Connecticut case has been cited or found determinative of the principal question stated above, although Swift does say on the page cited: ‘Executions * * * may at any time be renewed, or alias executions granted by the clerk, without application to the court. * * *’ See also Roberts v. Church, 17 Conn. 142, 145. The few cases found elsewhere agree that the answer is in the affirmative. In the language of a former day: ‘It was moved to quash the capias ad satisfaciendum, because the plaintiff, by taking out an elegit, had waived any other execution. And for this all the old cases were cited. But the court held the capias ad satisfaciendum was regular; for there being a nichil returned as to lands, the elegit was but in the nature of a common fieri facias, upon which, if part be...