Monaco v. Matarrese (In re Monaco)

• Decision Date: 12 January 1937
• Docket Number: Gen. No. 38586.
• Citation: Monaco v. Matarrese (In re Monaco), 287 Ill.App. 540, 5 N.E.2d 755 (Ill. App. 1937)
• Parties: IN RE MONACO. MONACO v. MATARRESE.
• Court: Appellate Court of Illinois

287 Ill.App. 540

5 N.E.2d 755

IN RE MONACO.MONACO

v.MATARRESE.

Gen. No. 38586.

Appellate Court of Illinois, First District, Second Division.

Dec. 30, 1936.

Rehearing Denied Jan. 12, 1937.

Appeal from Cook County Court; Edmund K. Jarecki, Judge.

Proceeding in the matter of the petition of Attilio Monaco for discharge from imprisonment under a capias ad satisfaciendum caused to be issued by Felix Matarrese. From an order denying his motion for discharge, the petitioner appeals.

Reversed and remanded, with directions.

John O. Wagner, of Chicago, for appellant.

Rocco de Stefano, of Chicago, for appellee.

JOHN J. SULLIVAN, Presiding Justice.

Pursuant to a judgment of the superior court rendered against Attilio Monaco for $6,500 in an action brought by Felix Matarrese for the malicious alienation of the affections of the latter's wife by Monaco, Matarrese caused to be issued by the clerk of the superior court a capias ad satisfaciendum, under which Monaco was taken into custody by the sheriff of Cook county. January 23, 1934, Monaco filed a petition in the county court for his release under the Insolvent Debtors Act (Smith-Hurd Ill.Stats. c. 72, § 1 et seq.). March 2, 1934, Rocco de Stefano, attorney for Matarrese, filed a plea in behalf of the sheriff, alleging that malice was the gist of the superior court action, in which the judgment for $6,500 was rendered against Monaco upon the jury's general verdict of guilty, and praying that Monaco be remanded to the custody of the sheriff “to be incarcerated as commanded, not to exceed six months or to be discharged by due process of law.”

May 1, 1934, after hearing, the county court found that malice was the gist of the superior court action and ordered the dismissal of Monaco's petition for discharge and his remandment to the custody of the sheriff. On the same day Monaco filed a notice of appeal from the order or judgment of the county court, and his appeal bond of $7,500 was approved by the court. His præcipe for record was also filed within apt time.

Prior to the entry of the judgment of the county court Monaco had sued out a writ of error from this court to review the judgment of the superior court without requesting or securing a supersedeas. The opinion of this court was filed March 28, 1935, affirming the judgment of the superior court, and Monaco's petition for leave to appeal that cause was denied by the Supreme Court June 28, 1935.

The record does not disclose the reason, but apparently it was to await the decision of this court and the Supreme Court on the superior court judgment, pending for review, that the county court granted, over a period of more than sixteen months, numerous extensions of time to petitioner for filing his record of proceedings in the instant case. All such extensions were granted before the expiration of the original and extended periods allowed for such filing, the parties stipulating to many of the extensions, even the last extension of August 14, 1935, being granted upon such a stipulation. The report of proceedings presented to Judge Edmund K. Jarecki on August 14, 1935, was finally approved by the trial judge September 4, 1935, and the record was transmitted to the clerk of this court and filed within apt time.

In the meantime, on July 26, 1935, by leave of court, the petitioner, Monaco, presented and filed the following motion:

“Now comes the petitioner, Attilio Monaco, by John O. Wagner, his attorney, and moves the Court that the petitioner in the above entitled cause be discharged in accordance with the prayer of his petition.

“The petitioner, Attilio Monaco, is under arrest by the Sheriff of this County on a capias ad satisfaciendum on a judgment in a tort action, and in the said suit, where judgment was obtained, there was no special finding of the jury, or a special finding by the Court that malice is the gist of the action, and the petitioner has never refused to deliver up his estate for the benefit of his creditors, nor has a demand been made upon him to deliver up his estate, and the said petitioner has no estate whatsoever.

“The petitioner is, therefore, entitled to his discharge under an Act of the legislature, and approved by the governor of the State of Illinois, on the 11th day of July, 1935 [Laws 1935, p. 937], a copy of which Act reads as follows:

“ ‘An Act to amend section 5 of “An Act in regard to judgments and decrees, and the manner of enforcing the same by execution, and to provide for the redemption of real estate sold under execution or decree,” approved March 22, 1872, as amended.

“ ‘Be it enacted by the People of the State of Illinois, represented in the General Assembly:

“ ‘Section 1. Section 5 of “An Act in regard to judgments and decrees, and the manner of enforcing the same by execution, and to provide for the redemption of real estate sold under execution or decree,” approved March 22, 1872, as amended, is amended to read as follows: § 5. No execution shall issue against the body of the defendant except when the judgment shall have been obtained for a tort committed by such defendant, and it shall appear from a special finding of the jury, or from a special finding by the court, if the case is tried by the court without a jury, that malice is the gist of the action, and except when thedefendant shall refuse to deliver up his estate for the benefit of his creditors.’ ”

The court, after allowing petitioner's motion to be considered a part of the transcript of proceedings and admitting in evidence a certified copy of the amendment above set forth, denied said motion, and in doing so stated: “I shall hold that the law as amended is not retroactive and shall deny the motion to discharge the appellant.”

The petitioner contends that he is entitled to his discharge under the amendment to the statute of July 11, 1935, because (1) the rule that statutes are prospective, and will not be construed to have retroactive operation unless the language employed therein is so clear that it will admit of no other construction, applies only to statutes which affect some vested right or interest existing under a prior law, and does not apply to statutes which merely relate to remedies and forms of procedure; and (2) because it is also the rule that where a statute affording a special remedy is repealed without a saving clause in favor of pending suits, it is the duty of the court to determine cases pending before it upon the law in force when it renders its decision.

Respondent's theory is that the Insolvent Debtors Act does not apply to a judgment based on malice; and that the amendment in question to the “Judgments and Decrees Act” is prospective and not retroactive.

It will be noted that the amendment of July 11, 1935 (Smith-Hurd Ill.Stats. c. 77, § 5), provides that “no execution shall issue against the body of the defendant except when the judgment shall have been obtained for a tort committed by such defendant, and it shall appear from a special finding of the jury, or from a special finding by the court, if the case is tried by the court without a jury, that malice is the gist of the action.” There was no special finding by the jury in the superior court case “that malice is the gist of the action.”

It must be conceded that in all cases of this character filed in the county court subsequent to July 11, 1935, the court would be compelled to discharge the relators therein unless it were shown that the execution against the body of the defendants in such cases was issued pursuant to a special finding that malice was the gist of the action. It is no longer the province of the county court to determine whether malice is the gist of the action in this class of cases. That question under the amendment is squarely up to the court or jury, as the case may be, which tries the facts in the action where the tort judgment is obtained.

While it is the established rule that statutes are prospective and will not be construed to operate retroactively unless the language employed therein is so clear that it will admit of no other construction, this rule applies only to statutes which affect some vested right or interest existing under a prior law, and does not apply to statutes which relate merely to remedies and forms of procedure. Aultman & Taylor Machinery Co. v. Arthur Fish et al., 120 Ill.App. 314. No vested right of Matarrese in his superior court judgment against Monaco is affected by the amendment. This amendment clearly affects only a special remedy available to the judgment creditor under the statute as it existed prior to the enactment of the amendment, and the law is settled in this state by a long and uninterrupted line of decisions that, where a statute giving a special remedy is amended or repealed without a saving clause in favor of pending suits, all suits affected must be decided in conformity to the law then existing.

The effect of amending or appealing legislation that merely relates to remedies and forms of procedure is considered at...