Turner v. Norton , 31 Ill. App. 423 ( 1889 )

Reeves, J.

On the 10th day of August, 1887, appellant was arrested by appellee Myers, a constable, on a ca. sa. issued Ixv appellee Morton, a justice of the peace, under the provision of Sec. 22, Chap. 79 of Starr & C. Ill. Stats., on the affidavit, and at the suit of Henry Winklee. Such proceedings were had on the return day of the writ, that the writ was quashed on account of the insufficiency of the affidavit; at this point there is a conflict in the testimony as to what occurred. The transcript of the justice recites as follows:

“ August 15, 1887, parties appeared. * * * Writ of capias quashed on motion of defendant. Affidavit amended for new writ by leave of court. Case dismissed as to capias and proceed to trial on summons only. Defendant left the court when discharged from writ. Plaintiff’s witnesses sworn to try the case. Judgment rendered against defendant by default,” etc.

The appellant claims that when the capias was quashed the attorney for appellant stated to the justice that when the capias was quashed the plaintiff had the right to go on, treating the service of the capias as the service of a-summons; that the justice said to plaintiff’s attorneys that they could amend and go on, but they refused to amend or did not, and thereupon the justice announced that the case was dismissed and the prisoner was discharged ; appellant and his.attorney remained in court for ten or fifteen minutes, when appellant’s attorney said to the justice : “ Do I understand the court to say that the suit is dismissed and it is no use for ns to stay longer?” The justice replied, “ That is my understanding, unless the gentlemen desire to amend.” Thereupon the witnesses for the defendant claimed their attendance and he and his counsel left the office of the justice.

This version of what occurred before the justice is materially controverted by the justice and other witnesses. These witnesses insist that it was only a dismissal as to the capias that was spoken of, and that there was no statement of the justice that the suit was dismissed. The judgment was rendered August 15tli. An execution was sworn out the same day and the next day it was served on appellant. He then, and for nineteen days after, had the opportunity to take an appeal from the judgment. This execution was returned, no property found. On the 6th day of September a capias ad satisfaciendum, was issued upon the judgment, and on the 8th day of September appellant was arrested on this capias; whereupon he filed the bill in this case and procured an injunction restraining the justice from issuing any further process upon said judgment, and commanding the return of the capias in the hands of the constable, and enjoining constable flyers from longer retaining appellant in custody and directing him to return the capias to the justice.

Opon the hearing the bill was dismissed and the injunction dissolved. Taking the appellant’s account of what occurred before the justice as correct, which can by no means be admitted under all the testimony in the case, has he a standing in a court of equity ? We think not. He had abundant opportunity after he knew the judgment had been rendered against him, to take an appeal, and in this had an adequate and complete remedy at law.

Furthermore, if the capias ad satisfaciendum was illegally issued, he had a complete remedy at law for release from arrest under the writ by habeas corpus. In any view of the case the remedy of appellant at law was adequate and complete. The bill was properly dismissed for want of equity.

The decree of the Circuit Court is affirmed.

Decree affirmed.