Greener v. Brown , 323 Ill. 221 ( 1926 )

Plaintiff in error filed in the county court of Cook county a petition, in which he alleged that he had been arrested under a capias ad satisfaciendum issued out of the circuit court of Cook county on a judgment secured by Marvin C. Greener and Charles H. Glader for the sum of $2669.28; that he is in custody of the sheriff by virtue of said writ and is desirous of being released from such arrest and imprisonment by delivering up his property. Greener and Glader filed a plea to the petition, in which they alleged that the petitioner was not entitled to his discharge because he was arrested under acapias ad satisfaciendum which was based upon a judgment in which malice was the gist of the action. On hearing before the court without a jury the court found that malice was the gist of the action in which the judgment had been rendered and ordered the petitioner remanded to the custody of the sheriff until released by due process of law. The Appellate Court affirmed the judgment of the county court, and the cause comes here for review on writ of certiorari.

The question involved in the case is whether or not malice was the gist of the action in which the judgment against plaintiff in error was procured. That question is to be determined by an examination of the declaration.

The declaration filed against Brown was one in trespass on the case, and alleges that the plaintiffs, Greener and Glader, purchased from the International Products Company eighteen certain accounts receivable from debtors of that company to whom goods had been sold and delivered, amounting to the sum of $2669.28; that the accounts receivable were duly assigned to Greener and Glader by the International Products Company, and that by the terms of the assignment it was provided that the company should act as agent for Greener and Glader in the collection of the accounts, and that it would receive the money in trust for them and upon collection transmit to them on the day of the receipt thereof the original evidences of payment or part payment received by it and that the money should not be commingled with its property; that one Rundquist was president of the company and Brown was secretary, and that as such officers they had the active management of the business of the company and had charge of the collection of its accounts. It is further alleged that "pursuant to the authority contained in said contract of assignment the said Carl A. Rundquist and said Harry C. Brown collected in cash all the foregoing accounts, aggregating the sum of $2669.28, but did not transmit the same or any part thereof to the plaintiffs, but, on the contrary, failed and refused to do so and wrongfully and fraudulently converted the same to their own use and to the use of the International Products Company, in direct violation of the trust provided in the contract of assignment and without the knowledge, consent or authority of the plaintiffs." Brown and Rundquist were served with summons but did not appear, and the cause was heard before a jury, which brought in this verdict: "We the jury find the defendants guilty of conversion and assess plaintiffs' damages in the sum of $2669.28." Thereafter the capias adsatisfaciendum was issued.

Plaintiff in error contends that before the issuance of thecapias demand should have been made or an execution served upon him for the turning over of his estate; second, that the judgment of the circuit court was one for simple conversion, of which malice was not the gist; and third, that he was entitled to a trial by jury.

As to the last objection, it is sufficient to say that the cause on which the judgment was entered against plaintiff in error was tried by a jury, though he did not appear.

It is first contended that an execution should have been served upon plaintiff in error to require him to turn over his estate, as provided by section 62 of the act concerning judgments. Such is not, however, a prerequisite to the issuance of a capias ad satisfaciendum. The judgment being in tort in an action based on malice, the writ against the body may be had without execution issued. People v. Walker, 286 Ill. 541.

It is next urged that malice was not the gist of the action in which judgment was entered, and that plaintiff in error is therefore entitled to be released on his petition. By section 2 of the Insolvent Debtors act any person arrested or imprisoned upon process issued for the purpose of holding him to bail upon any indebtedness or in any civil action when malice is not the gist, may be released from arrest or imprisonment upon complying with the provisions of the act. Under section 5 of said act a debtor imprisoned for a debt upon a charge of fraud may have the question whether he is guilty of such fraud tried by a jury, yet such appears not to have been the purpose of the petition in this case. The petition recites that plaintiff in error is in the custody of the sheriff by virtue of said writ and is desirous of releasing his body from arrest by delivering up his property. The sole question controverted in this court, under the pleadings, is whether malice was the gist of the action. The jury in the circuit court found plaintiff in error was guilty of conversion. The action was one in tort based on fraudulent conversion. Malice, as that term is used in cases of this character, does not necessarily mean hatred or ill-will, but pertains to wrongs which are inflicted with an evil intent, design or purpose. Such malice may be shown by showing that the guilty party was actuated by dishonest motives with intent to perpetrate an injury. (Seney v. Knight, 292 Ill. 206; Kitson v. Farwell, 132 id. 327; First Nat. Bank of Flora v. Burkett, 101 id. 391.) That is the "gist of the action" which constitutes the basis of the suit and without which the suit could not be maintainable. It is the essential ground or object of the suit, without which there is not a cause of action. (Jernberg v. Mix, 199 Ill. 254.) The case alleged in the declaration was one charging malice and not merely an action for the recovery of money. Malice was therefore the gist of the action and the capias ad satisfaciendum was properly issued.

The judgments of the Appellate and county courts will be affirmed.

Judgment affirmed.