Universal Credit Co. v. Antonsen

• Decision Date: 02 October 1940
• Docket Number: No. 25493.,25493.
• Parties: UNIVERSAL CREDIT CO. v. ANTONSEN.
• Court: Illinois Supreme Court

374 Ill. 194

29 N.E.2d 96

UNIVERSAL CREDIT CO.

v.ANTONSEN.

No. 25493.

Supreme Court of Illinois.

June 14, 1940.

As Modified on Denial of Rehearing Oct. 2, 1940.

Proceeding by the Universal Credit Company to have A. E. Antonsen adjudged in contempt of court for failure to turn over certain automobiles described in a writ of replevin, to the bailiff of the Municipal Court of Chicago. From an order adjudging defendant guilty of contempt and committing him to the county jail, he appealed to the Supreme Court, which transferred the case to the Appellate Court, 370 Ill. 509, 19 N.E.2d 366. From a judgment of the Appellate Court affirming the order, 301 Ill.App. 334, 22 N.E.2d 790, the defendant appeals.

Judgments of the Appellate Court and the Municipal Court reversed.Appeal from Appellate Court, First District, on Appeal from Municipal Court of Chicago; Michael G. Kasper, Judge.

Simon Herr, of Chicago, for plaintiff in error.

Goldman, Allshouse & Healy, of Chicago (Robert G. Dreffein and M. M. Loman, both of Chicago, of counsel), for appellee.

STONE, Justice.

Appellant was found guilty of contempt of the municipal court of Chicago and committed to the county jail for failure to surrender possession of certain automobiles, valued at $6500, and described in a writ of replevin issued out of that court. The Appellate Court affirmed the order and the cause is here on appeal upon leave granted by this court.

February 8, 1938, appellee brought an action in replevin to recover fourteen automobiles from appellant. Service was had by leaving a copy of the writ with appellant's wife. The return showed no property found. Appellant refused to deliver up any of the automobiles or to disclose their whereabouts. Appellee thereupon presented a verified petition to have appellant adjudged in contempt of that court. A rule was entered upon him to file an answer within two days. A writ of attachment was issued and appellant brought before the court. He was given leave to file his answer instanter. Upon the petition and answer, without taking any testimony, the trial judge adjudged appellant to be in contempt of court by virtue of rule 238h of the municipal court. On a direct appeal to this court it was held that no constitutional question was involved but that the question presented by the record was whether said rule 238h is invalid because it conflicts with the Replevin statute. Universal Credit Co. v. Antonsen, 370 Ill. 509, 19 N.E.2d 366. The cause was transferred to the Appellate Court which affirmed the order of the municipal court.

The sole question here presented is: Does rule 238h of the municipal court conflict with the Replevin statute? Rule 238h is as follows: ‘Whenever the property described in the writ, or any part of such property, is so concealed that it cannot be found by the bailiff or other officer, he shall, if the plaintiff so requires, make demand upon the defendant for the delivery of the property not so found, and upon such demand being made, it shall be the duty of the defendant, if such property is in his possession or under his control, to comply with such demand and deliver the same to the officer and his failure so to do shall be deemed a contempt of court and may be punished as such accordingly, and the court may enter and enforce all orders necessary to compel the delivery of such property to the officers; Provided, however, that the defendant in any such case may, in the discretion of the court, be permitted to secure re-delivery of the property by the giving of a forthcoming bond as provided by rule 238d, or the court may order the property placed in the custody of a custodian or receiver to be disposed of in accordance with the rights of the parties as determined by the final judgment in the action, or the court may make such other order as the court may deem necessary or proper for the protection of the rights of the parties.’ The meaning of this rule is not difficult to ascertain. It clearly provides that if the property is in the defendant's possession or under his control and he refuses to deliver the same to the officer, ‘his failure so to do shall be deemed a contempt of court and may be punished as such accordingly.’

Section 18 of the Replevin act as amended in 1935, (Ill.Rev.Stat.1939, chap. 119, par. 18,) is as follows: ‘When the property or any part thereof has not been found or delivered as aforesaid, and the defendant is summoned or enters his appearance, the plaintiff may proceed, under original or amended complaint, as in an action for the wrongful taking and detention of such property or so much thereof as is not found and delivered to the sheriff, constable or other officer, and as to the property not found and delivered, the plaintiff, if he shall recover, shall be entitled to judgment for the value thereof or his interest therein, and such damages as he shall have sustained by reason of the wrongful taking and detention.’

Appellee, to support the judgment, insists that the municipal court has power to adopt its own rules of practice; that rule 238h of that court is a rule of practice; that practice and procedure are synonymous and that this rule is not one of substantive law. The argument of appellee, in support of its contentions, is based upon the premise that the court had jurisdiction of both the parties and of the subject matter of the suit. That the municipal court had jurisdiction of appellant and of the dispute constituting the suit, cannot be questioned. But whether it had jurisdiction of the property sought to be taken under the writ is quite another question.

Jurisdiction of the court over the person of the defendant in a replevin proceeding is for the purpose of determining the right of the parties in the lawsuit and the entry of a personal judgment against the defendant in a proper case. The purpose of having the officer take possession of the property is to bring and keep it within the jurisdiction of the court, and to return it to the plaintiff if no bond is given by the defendant.

Jurisdiction of the person is not for the purpose of forcing him to do anything, but if he fails to turn over the property a judgment in trover for the value of the goods may be entered against him. There is nothing in the Replevin act which demands that the defendant turn the property over to the officer under the replevin writ on pain of fine or jail sentence or both if he refuse or fail. The statute contemplates that in such a case the plaintiff may have a money judgment. In such cases possession of the property may be of greatest importance. If, without regard to the merits of the controversy, a plaintiff procures possession by replevin against a defendant unable to give a forthcoming bond, and then dismisses his suit, he may impose on the defendant the onus of getting it back or suing on the replevin bond, though the defendant have ever so good right to the possession of the property.

In subjecting the defendant to contempt, the rule here considered provides to the plaintiff a remedy the Replevin act does not contemplate. True, a defendant may defeat the purpose of the writ by secreting the property and refusing to turn it over to the officer. Nothing in the act prevents it. If such be a weakness in the act, it is a legislative and not a judicial question. A frailty in a statute cannot be remedied by a judicial rule which provides plaintiff a remedy he does not have under the act. In no case, aside from misconduct or contempt of legal court orders, may a party litigant have the benefit of an action for contempt against his adversary unless that remedy is provided by applicable statutes.

Courts have inherent power to punish for contempt, where necessary to maintain the dignity of the court, and such power may be exercised in those cases of refusal to obey legal commands of the court, such as subpoenas and the like, but a replevin writ is issued to the court's officer under a statute which does not compel the defendant to turn over the property but, on the other hand, affords alternative relief in case he does not.

The Appellate Court held that the remedy of contempt is one in addition to that given by statute, and this is true; but this fact, it appears to us, demonstrates its illegality rather than its legality. Courts may not legislate by rule. Powers given to the municipal court by the constitutional amendment and sections 8 and 20 of the Municipal Court act, Ill.Rev.Stat.1939, c. 37, §§ 363, 375, do not include judicial legislation. They empower that court to adopt such rules...