Morris v. Schwartz

• Decision Date: 29 May 1945
• Docket Number: Gen. No. 43025.
• Citation: 61 N.E.2d 690,326 Ill.App. 274
• Parties: MORRIS v. SCHWARTZ.
• Court: United States Appellate Court of Illinois

326 Ill.App. 274

61 N.E.2d 690

MORRIS

v.SCHWARTZ.

Gen. No. 43025.

Appellate Court of Illinois, First District, Second Division.

May 29, 1945.

Appeal from Municipal Court, of Chicago; Eugene J. Holland, Judge.

Proceeding by Benjamin B. Morris for body execution against Emanuel M. Schwartz on a judgment for plaintiff. From orders denying plaintiff's motion to strike out an affidavit supporting defendant's objections to the application for body execution and plaintiff's motion for such execution, plaintiff appeals.

Order denying motion for body execution affirmed, and order denying motion to strike out affidavit reversed.Benjamin B. Morris, of Chicago, pro se (David I. Spark, of Chicago, of counsel), for appellant.

Emanuel M. Schwartz, of Chicago, pro se (Harry G. Fins, of Chicago, of counsel), for appellee.

SULLIVAN, Presiding Justice.

On January 30, 1942 plaintiff, Benjamin B. Morris, obtained a judgment for $1,150 in a contract action against the defendant, Emanuel M. Schwartz. On November 18, 1943, plaintiff made an application supported by his affidavit to one of the judges of the Municipal Court of Chicago for an order on the clerk of said court to issue an execution against the body of defendant based upon the aforementioned judgment procured by Morris against Schwartz. Defendant, having received written notice that plaintiff proposed to file the application for a body execution against him on November 18, 1943, appeared on that day and filed written objections supported by his affidavit to said application. Thereafter, on November 22, 1943, plaintiff presented a motion in writing to strike from the files the affidavit of defendant appended to his objections and on the same day defendant filed written objections to plaintiff's motion to strike. The court ordered a hearing on the application for the body execution and the objections thereto and held that it was incumbent upon plaintiff to establish by evidence the truth of the facts alleged in his affidavit for such execution. Plaintiff refused to offer any evidence on the ground that he was not required to do so under the law. The court thereupon entered orders overruling plaintiff's motion to strike from the files the affidavit appended to defendant's objections and denying plaintiff's motion for a body execution. Plaintiff appeals from both orders. In our original opinion filed February 13, 1945 we reversed the orders appealed from and remanded the cause with directions ‘to sustain plaintiff's motion to strike defendant's affidavit appended to his objections and to enter an order for the issuance of a body execution against defendant.’ Defendant's petition for rehearing was allowed February 27, 1945.

Plaintiff's theory is that ‘his affidavit was sufficient to authorize the issuance of a body execution; that, upon his filing of said affidavit, the trial judge should have ordered the body execution to issue, and therefore erred when he ruled the plaintiff to introduce evidence to sustain the allegations in his affidavit; and that the procedure provided for in the statute for securing the issuance of a body execution does not violate the constitutional provision prohibiting imprisonment for debt.’

Section 12 of Article 2 of the Constitution of Illinois of 1870 provides as follows: ‘No person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors, in such manner as shall be prescribed by law, or in cases where there is strong presumption of fraud.’

The Illinois Constitutions of 1818 and 1848 also contained this identical provision. Pursuant to said constitutional provision the following statutory procedure was adopted (Sec. 1, chap. LII, Rev.Stat. of Ill.1845) for the procurement of a body execution against a judgment debtor: ‘Whenever any debtor shall refuse to surrender his or her estate, lands, tenements, goods or chattels, for the satisfaction of any execution which may be issued against the property of any such debtor, it shall and may be lawful for the plaintiff in such execution, or his or her attorney or agent, to make affidavit of such fact before any justice of the peace of the county; and upon filing such affidavit with the clerk of the court from which the execution issued, or with the justice of the peace who issued such execution, it shall be lawful for such clerk or justice of the peace, as the case may be, to issue a ca. sa. against the body of such defendant in execution.’

The constitutionality of this statute was upheld in Fergus v. Hoard, 15 Ill. 357, where the court, after referring to the constitutional provision and setting forth in detail the procedure provided for in said statute, stated at page 361 of 15 Ill.:

‘It can hardly be insisted that in these provisions, the legislature violated the immunity from arrest, secured to the debtor by the constitution. It provides for his arrest in the precise case, the exact contingency, permitted by the constitution. It merely prescribes the mode of proceeding in such case, and that was necessarily left to the discretion of the legislature. No other power existed in the State, capable of determining in what way the facts should be determined, upon the existence of which the constitution permitted the arrest and imprisonment.

‘The affidavit upon which the ca. sa. was issued, after stating the recovery of the judgment, proceeds, ‘and this deponent further says, that the said defendant, Henry K. Davis, has refused to surrender his estate, lands and tenements, goods and chattels, for the satisfaction of an execution issued out of said court upon said judgment, and still doth neglect and refuse to make said surrender.’ This affidavit is certainly in literal conformity to the statute. It makes the precise statements which the statute says shall be made in the affidavit.'

In discussing the constitutional prohibition against imprisonment for debt in Tuttle v. Wilson, 24 Ill. 553, the Supreme Court, speaking through Mr. Justice Breese, said at pages 554 and 555 of 24 Ill.: ‘The right to personal liberty is one of the most valuable and most cherished rights appertaining to man in society, and one of which he cannot be deprived, except by the judgment of his peers, or by the law of the land. In the barbaric age of the law in this country, the unfortunate debtor could be deprived of this inestimable right, if he failed to pay an honest debt. His creditor could keep him in arcta custodia for the misfortune of being poor. This was so in all the States of this Union, whose organic laws had been established prior to the year eighteen hundred and eighteen, except Tennessee. In that year the constitution of this State was adopted, which contained, as one of its fundamental principles, alike beneficent and just, this provision: ‘No person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors, in such manner as shall be prescribed by law, or in cases where there is strong presumption of fraud.’ Art. 8, Sec. 15, (Scates' Comp. 54)'

In Fergus v. Hoard, supra, the affidavit for body execution merely alleged in the language of the aforesaid statute that the judgment debtor refused to surrender his estate, lands and tenements, goods and chattels, for the satisfaction of the execution issued pursuant to the judgment in that case and it was held to be sufficient. The ruling in the Fergus case as to the sufficiency of the affidavit filed therein was modified by the Supreme court in the Tuttle case, where it was held that the affidavit for a body execution should aver not only that the defendant refused to surrender his estate, lands and tenements, goods and chattels, not exempt from execution, but that he has such estate, lands and tenements, goods and chattels.

It will be noted that the statute then in effect provided that ‘upon filing such affidavit with the clerk of the court from which the execution issued * * * it shall be lawful for such clerk * * * to issue a ca. sa. against the body of such defendant in execution.’ It was undoubtedly because honest judgment debtors were too frequently subjected to unwarranted and unjust arrest and imprisonment under this mode of procedure and because it was too susceptible to abuse that the legislature was actuated to amend the statute by requiring, among other things, an order of court for the issuance of a body execution, so that the liberty of judgment debtors would be afforded some measure of protection prior to their arrest and imprisonment. To that end section 62 of the Act relating to Judgments, Decrees and Executions (pars. 65, chap. 77, Ill.Rev.Stat.1943) was enacted, prescribing a different mode of procedure for procuring a body execution. Said section is as follows: ‘Sec. 62. If, upon the return of an execution unsatisfied, in whole or in part, the judgment creditor, or his agent or attorney, shall make an affidavit stating that demand has been made upon the debtor for the surrender of his estate, goods, chattels, land and tenements, for the satisfaction of such execution, and that he verily believes such debtor has estate, goods, chattels, lands or tenements, not exempt from execution, which he unjustly refuses to surrender, or that since the debt was contracted, or the cause of action accrued, the debtor has fraudulently conveyed, concealed, or otherwise disposed of some part of his estate, with a design to secure the same to his own use, or defraud his creditors; and also setting forth upon his knowledge, information and belief, in either case, the facts tending to show that such belief is well founded, and shall procure the order of the judge of the court from which the execution issued, or of any judge or master in chancery in the same county, certifying that probable cause is shown in such affidavit to authorize the issuing of an execution against the body of the debtor, and ordering that such writ be issued; upon the filing of such...