In re Burrows

• Decision Date: 04 June 1885
• Citation: 7 P. 148,33 Kan. 675
• Parties: In the Matter of the Petition of MELVIN BURROWS, for a Writ of Habeas Corpus
• Court: Kansas Supreme Court

7 P. 148

33 Kan. 675

In the Matter of the Petition of MELVIN BURROWS, for a Writ of Habeas Corpus

Supreme Court of Kansas

June 4, 1885

Original Proceedings in Habeas Corpus.

PETITION for a writ of habeas corpus, filed in this court April 24 1885, by Melvin Burrows, against C. H. Thompson, as sheriff of Marion county. Thereupon the writ prayed for was issued and made returnable before the supreme court on May 6, 1885. On that day the said sheriff brought before the court the body of the petitioner aforesaid, and certified in his return to the writ as follows, to wit:

"The body of the within-named Melvin Burrows was held by me at the time of the issuance of the said writ, for contempt of court under the order and warrant of commitment of Hon. L. Honk judge of the ninth judicial district of said state of Kansas, a copy of which said order and warrant of commitment is hereto attached, marked 'Exhibit A,' and made a part hereof; and by virtue of a judgment upon a mandate of your said court affirming said order, a copy of which said judgment is hereto attached and made a part hereof, and marked 'Exhibit B.'

"And I do further certify, as I am informed and verily believe, that the said examination as referred to in the petition of Melvin Burrows herein filed, was held by and with the voluntary assent and consent of said Melvin Burrows; and, as I am further informed and believe, I do deny that said Melvin Burrows was denied a trial by jury, and that he was compelled to be a witness against himself, and that the said judge kept no minutes of his said proceedings, and that said Melvin Burrows was denied the right of being confronted by witnesses, and all the witnesses, in said proceedings --all of which said matters of fact are set forth in the said petition of Melvin Burrows herein filed, and alleged to be true.

"And I do further certify, as I am informed and verily believe, that the said order adjudging said Melvin Burrows guilty of a contempt of court has never been reversed, modified, or satisfied.

"And I do further certify, that, pursuant to the commands of your said writ, I did, upon a recognizance given, release the sam Melvin Burrows from custody on April 25, 1885; nevertheless, the body of the said Melvin Burrows I have ready here before this court."

Other facts are stated in The State, ex rel., v. Burrows, ante, pp. 10, et seq., and in the opinion herein, filed June 4, 1885.

J. S. Dean, for petitioner.

J. H. Morse, for The State.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

On March 25, 1884, F. H. Kollock and B. Fanning recovered before a justice of the peace of Marion county in this state, a judgment against Melvin Burrows, aggregating, with costs, $ 325.30. On June 7, 1884, an abstract of the judgment was filed and docketed in the office of the clerk of the district court of said county. On the same day an execution was issued upon the judgment to the sheriff of Marion county against the property of the judgment debtor. This execution was returned unsatisfied, and the judgment still remains unsatisfied. Subsequently to the return of the execution, proceedings were taken before the district judge of Marion county against the debtor, under the sections of the code "in aid of execution," to compel him to answer concerning his property, which the judgment creditors alleged he unjustly refused to apply toward the satisfaction of their judgment. The judge found that Burrows had, at his examination, upon his person and under his actual control, money to the amount of $ 1,000, not exempt by law, and he then ordered him to apply sufficient of said moneys so in his possession toward the satisfaction of the judgment against him. Burrows wholly failed and neglected to comply with the order. Thereupon, he was arrested, brought before the judge, and upon a hearing it was adjudged that he was guilty of contempt in disobeying the order directing him to pay said judgment. It was further ordered that he be committed to the jail of Marion county until he paid the said judgment with interest and costs, and also the costs of the proceedings for contempt, amounting to $ 26.60.

It is claimed, on behalf of Burrows, that the order of the district judge committing him to the jail of Marion county until he should pay the amount of the judgment of March 25, 1884, and the provisions of the code authorizing his examination and commitment, are violative of § 5 of the bill of rights of the constitution of the state, which provides that "the right of trial by jury shall be inviolate;" also § 10 of the bill of rights, that "no person shall be a witness against himself;" also, of § 16 of the bill of rights, that "no person shall be imprisoned for debt, except in cases of fraud;" and also, are obnoxious to the fifth amendment to the federal constitution, that "no person shall be deprived of life, liberty or property without due process of law."

The principal contention is, that Burrows had the right, upon his examination, to have the question of his ability to pay the judgment decided by a jury. In re Grace, 12 Iowa 208, is cited to support this proposition. Therein, it is decided that under a somewhat similar provision of the Iowa statute, the court has not the power to punish for contempt, without giving the party charged a jury trial. The court, in that case, pronounces the statute under which the proceedings were had offensive to a peculiar provision of the constitution of Iowa in reference to trial by jury, said to have been introduced into the constitution to secure fugitive slaves the right to such trial. Mr. Pomeroy, in his notes in Sedgwick on Statutory and Constitutional Law, 490, says, in reference to this case:

"But this decision is probably exceptional; for a similar statute exists in many states--in most of those which have adopted the New York code of procedure--and seems to have raised no objection."

The proceeding in aid of execution, though created by statute, is a proceeding in the action in which the judgment was recovered, after the judgment debtor has had a hearing and trial, and is a substitute for the creditors' bill formerly used in chancery. The proceeding is a simple regulation of wellestablished and well-defined jurisdiction which courts of equity were accustomed to employ. After the decree in a court of equity for the delivery of the property or effects, the debtor, upon disobeying the decree, was adjudged for his contumacy guilty of contempt of the authority of the court. He therefore could be imprisoned so long as he remained in contempt. Obedience, however, to the decree--that is, the delivery of the property--would terminate the imprisonment at any time. The purpose of the statute is to require the delivery of the property of the judgment debtor for the payment of his debts; and if it is made, the debtor cannot be imprisoned. It is only when the debtor has property which he unjustly refuses to apply toward the satisfaction of a judgment, after being afforded the opportunity so to do, that he can be imprisoned. "The imprisonment is not...