Holmstrom v. Wall, 7966

• Decision Date: 29 June 1936
• Docket Number: 7966
• Parties: SOPHIA HOLMSTROM, Plaintiff, v. LUCIUS J. WALL, Judge of the Circuit Court of the Second Judicial Circuit of Minnehaha County, and Eugene I. Foster, Clerk of the Circuit Court, Defendants.
• Court: South Dakota Supreme Court

64 S.D. 467

268 N.W. 423

SOPHIA HOLMSTROM, Plaintiff,

v.

LUCIUS J. WALL, Judge of the Circuit Court of the Second Judicial Circuit of Minnehaha County, and Eugene I. Foster, Clerk of the Circuit Court, Defendants. South Dakota Supreme Court Original Proceeding in certiorari #7966—Affirmed Henry C. Mundt, W.O. Knight, Sioux Falls, SD Attorneys for Plaintiff. John C. Mundt, T.R. Johnson, Sioux Falls, SD Attorneys for Defendants. Opinion Filed Jun 29, 1936

RUDOLPH, Judge.

This case is here as an original proceeding in certiorari. One Anna Linnenbuerger obtained a judgment against the petitioner, Sophia Holmstrom, in the circuit court of Minnehaha County on October 15, 1934. The judgment was one recovered for the alienation of the affections of the plaintiff’s husband, and is as follows:

“... Ordered, adjudged and decreed, that the plaintiff, Anna Linnenbuerger, have and recover judgment against the defendant, Sophia Holmstrom, also known as Sofie Holmstrom and Sofia Holmstrom, for the sum of Seventeen Thousand Five Hundred Dollars ($17,500.00) together with the costs and disbursements of this action amounting to the sum of $124.40 (to be hereinafter taxed and inserted herein by the Clerk of this Court) amounting in all to a total sum of $17,624.40, for knowingly, purposely, wilfully, wrongfully, wickedly and maliciously alienating and destroying the affections of plaintiff’s husband, Fred Linnenbuerger, for the plaintiff, Anna Linnenbuerger, herein. ...

An execution upon said judgment was returned unsatisfied, and thereafter upon the application of the plaintiff in the circuit court action, the circuit court by order directed that “Eugene I. Foster, as clerk of the said circuit court of Minnehaha County be, and he hereby is, authorized and directed to issue a body execution against the said defendant.” It appears that a body execution has issued, and the petitioner in this proceeding questions the authority and jurisdiction of the circuit court and the clerk thereof to issue a body execution against the petitioner here, who was the defendant in the circuit court action.

Section 2636, RC 1919, provides as follows:

“If the action be one in which the defendant might have been arrested as provided in section 2384 and section 2386, an execution against the person of the judgment debtor may be issued to any county within the jurisdiction of the court after the return of an execution against his property unsatisfied in whole or in part. But no execution shall issue against the person of a judgment debtor unless an order of arrest has been served as provided in this title, or unless the complaint contains a statement of facts showing one or more of the causes of arrest required by section 2384.

The question presented is, therefore, whether the complaint “contains a statement of facts showing one. or more of the causes of arrest required by section 2384.” As stated above, the complaint upon which the judgment was based was one for alienating the affections of the plaintiff’s husband, and from the allegations of the complaint it appears that the acts of the defendant upon which the cause of action was based were willful. Section 2384, RC 1919, provides:

“The defendant may be arrested, as hereinafter prescribed, 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 not a resident 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 wrongfully taking, detaining or converting property. ...

“5. ... But no female shall be arrested in any action, except for wilful injury to person, character or property.

Is the willful...