Boos v. White ( 1896 )

Mr. Justice Waterman

delivebed the opinion of the Couet.

Section 12 of article 18 (p. 224, Laws of 1895), Hurd’s Statutes 1895, 973, is as follows:

“ Ho person shall be imprisoned for non-payment of a fine or a judgment in any civil, criminal, quasi criminal, or qv/i tarn, action, except upon conviction by a jury; provided, that the defendant or defendants in any such action may waive a jury trial by executing a formal waiver, in writing, and when such waiver of jury is made, imprisonment may follow the judgment of the court without conviction by the jury. This section shall not apply to fines inflicted for contempt of court.”

Section 4 of article 11 (p. 214 of Laws of 1895), Hurd’s Statutes 1895, 966, is as follows:

“ When the judgment creditor is not entitled to an execution against the body of the defendant, under the preceding section, if upon the return of an execution against the goods and chattels of the defendant unsatisfied in whole or in part, the judgment creditor, or his agent or attorney, shall file with the justice of the peace from whom the execution issued, an affidavit, stating that demand has been made upon the debtor for the surrender of his money, goods and chattels for the satisfaction of such execution, and that he verily believes that such "debtor has moneys, goods and chattels 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 moneys, goods and chattels, with a design to secure the same to his own use or defraud his creditors; and also setting forth, upon his knowledge, information or belief, in either case, the facts showing that such belief is well founded—such justice of the peace, if he shall be satisfied that the facts so set- forth justify such belief, shall issue an execution against the body of the judgment debtor.”

Section 12 of article 18 does not apply to arrests under the provisions of section 4 of the statute concerning justices and constables. The execution under section 4 is because of something done subsequent to the judgment. Whether the allegations in the affidavit, upon which the execution is issued, are true, is a matter upon which the defendant is entitled to a hearing and a jury trial. The imprisonment can not be continued except under the verdict of a jury.

• The judgment of the County Court is reversed and the cause remanded.