People ex rel. Mark v. Walker
| Decision Date | 20 February 1919 |
| Docket Number | No. 12261.,12261. |
| Citation | 286 Ill. 541,122 N.E. 92 |
| Parties | PEOPLE ex rel. MARK v. WALKER, Judge, et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Petition by the People, on the relation of Lena Mark, for a writ of mandamus to compel Charles M. Walker, Judge of the Circuit Court of Cook County, and others, to enter an order directing the clerk to issue a capias ad satisfaciendum. Writ denied.
Harold O. Mulks, of Chicago, for petitioner.
Walter M. Farmer, of Chicago, for respondents.
Lena Mark recovered a judgment at the April term, 1918, of the circuit court of Cook county, against Hyman Schulman for $400 damages in an action of trespass for an assault and battery. The judgment remaining in full force, not stayed by any appeal, supersedeas, injunction, or other order of any court, and being wholly unpaid, plaintiff on June 1, 1918, pursuant to notice given the defendant, moved the court to enter an order directing the clerk to issue a capias ad satisfaciendum against the defendant. The defendant resisted the motion on the ground that the writ could not lawfully issue unless malice or an actual intention to commit a wrong had been proved against the defendant and that no such proof had been made at the trial, and the court, the Hon. Charles M. Walker presiding, refused on that ground to order the writ issued. Thereupon the plaintiff, pursuant to leave granted at the June term of this court, filed a petition against the defendant and Judge Walker, alleging the foregoing facts and praying for a writ of mandamus commanding Judge Walker to order the clerk of the circuit court to issue the writ of capias ad satisfaciendum. The cause has been submitted for decision upon demurrer to the petition.
Sections 4 and 5 of chapter 77 of the Revised Statutes provide that the person in whose favor any judgment may be obtained may have execution thereon, in the usual form, against the lands and tenements, goods and chattels of the person against whom the judgment is obtained, or against his body when the same is authorized by law, but that no execution shall issue against the body except when the judgment shall have been obtained for a tort committed by the defendant, or unless the defendant shall have been held to bail or shall refuse to deliver up his estate for the benefit of his creditors. Our Constitution has abolished imprisonment for debt except for a refusal to deliver up property for the benefit of creditors, or in cases where there is strong presumption of fraud. But this prohibition applies only to actions upon contracts, express or implied, and does not extend to actions for torts. People v. Cotton, 14 Ill. 414;McKindley v. Rising, 28 Ill. 337;Rich v. People, 66 Ill. 513;Kennedy v. People, 122 Ill. 649, 13 N. E. 213.
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