Morris v. Schwartz , 326 Ill. App. 274 ( 1945 )

On Rehearing.

Mr. Presiding Justice Sullivan

delivered the opinion of the court.

On January 30, 1942 plaintiff, Benjamin B. Morris, obtained a judgment for $1,150 in a contract action against the defendant, Emanuel M. Schwartz. On November 18, 1943, plaintiff made an application supported by his affidavit to one of the judges of the municipal court of Chicago for an order on the clerk of said court to issue an execution against the body of defendant based upon the aforementioned judgment procured by Morris against Schwartz. Defendant, having received written notice that plaintiff proposed to file the application for a body execution against him on November 18, 1943, appeared on that day and filed written objections supported by his affidavit to said application. Thereafter, on November 22, 1943, plaintiff presented a motion in writing to strike from the files the affidavit of defendant appended to his_ objections and on the same day defendant filed written objections to plaintiff’s motion to strike. The court ordered a hearing on the application for the body execution and the objections thereto and held that it was incumbent upon plaintiff to establish by evidence the truth of the facts alleged in his .affidavit for such execution. Plaintiff refused to offer any evidence on the ground that he was not required to do so under the law. The court thereupon entered orders overruling plaintiff’s motion to strike from the files the affidavit appended to defendant’s objections. and denying plaintiff’s motion for a body execution. Plaintiff appeals from both orders. In our original opinion filed February 13, 1945 we reversed the orders appealed from and remanded the cause with directions “to sustain plaintiff’s motion to strike defendant’s affidavit appended to his objections and to enter an order for the issuance of a body execution against defendant.” Defendant’s petition for rehearing was allowed February 27, 1945.

Plaintiff’s theory is that “his affidavit was sufficient to authorize the issuance of a body execution; that, upon his filing of said affidavit, the trial judge should have ordered the body execution to issue, and therefore erred when he ruled the plaintiff to introduce evidence to sustain the allegations in his affidavit; and that the procedure provided for in the statute for securing the issuance of a body execution does not violate the constitutional provision prohibiting imprisonment for debt.”

Section 12 of article 2 of the Constitution of Illinois of 1870 provides as follows:

“No person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors, in such manner as shall be prescribed by law, or in cases where there is strong presumption of fraud.”

The Illinois Constitutions of 1818 and 1848 also contained this identical provision. Pursuant to said constitutional provision the following statutory procedure was adopted (sec. 1, ch. LII, Ill. Rev. Stat. 1845) for the procurement of a body execution against a judgment debtor:

“Whenever any debtor shall refuse to surrender his or her estate, lands, tenements, goods or chattels, for the satisfaction of any execution which may be issued against the property of any such debtor, it shall and may be lawful for the plaintiff in such execution, or his or her attorney or agent, to make affidavit of such fact before any justice of the peace of the county; and upon filing such affidavit with the clerk of the court from which the execution issued, or with the justice of the peace who issued such execution, it shall be lawful for such clerk or justice of the peace, as the case may be, to issue a ca. sa. against the body of such defendant in execution.”

The constitutionality of this statute was upheld in Fergus v. Hoard, 15 Ill. 357, where the court, after referring to the constitutional provision and setting forth in detail the procedure provided for in said statute, stated at p. 361:

“It can hardly be insisted that in these provisions the legislature violated the immunity from arrest secured to the debtor by the constitution. It provides for his arrest in the precise case, the exact contingency, permitted by the constitution. It merely prescribes the mode of proceeding in such case, and that was necessarily left to the discretion of the legislature. No other power existed in the state capable of determining in what way the facts should ‘ be determined, upon the existence of which the constitution permitted the arrest and imprisonment.

“The affidavit upon which the ca. sa. was issued, after stating the recovery of the judgment, proceeds, ‘and this deponent further says that the said defendant, Henry K. Davis, has refused to surrender his estate, lands and tenements, goods and chattels, for the satisfaction of an execution issued out of said court upon said judgment, and still doth neglect and refuse to make said surrender.’ This affidavit is certainly in literal conformity to the statute. It makes the precise statements which the statute says shall be made in the affidavit.”

In discussing the constitutional prohibition against imprisonment for debt in Tuttle v. Wilson, 24 Ill. 553, the Supreme Court, speaking through Mr. Justice Breese, said at pp. 554 and 555:

“The right to personal liberty is one of the most valuable and most cherished rights appertaining to man in society, and one of which he cannot be de-. prived, except by the judgment of his peers, or by the law of the land. In the barbaric age of the law in this country, the unfortunate debtor could be deprived of this inestimable right, if he failed to pay an honest debt. His creditor could keep him in arcta custodia for the misfortune of being poor. This was so in all the States- of this Union, whose organic laws had been established prior to the year eighteen hundred and eighteen, except Tennessee. In that year the constitution of this State was adopted, which contained, as one of its fundamental principles, alike beneficent and just, this provision: ‘No person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors, in such manner as shall be prescribed by law, or in cases where there is strong presumption of fraud.’ Art. 8, Sec. 15, (Seates’ Comp. 54).”

In Fergus v. Hoard, supra, the affidavit for body execution merely alleged in the language of the aforesaid statute that the judgment debtor refused to surrender his estate, lands and tenements, goods and chattels, for the satisfaction of the execution issued pursuant to the judgment in that case and it was held to be sufficient. The ruling in the Fergus case as to the sufficiency of the affidavit filed therein "was modified by the Supreme Court in the Tuttle case, where it was held that the affidavit for a body execution should aver not only that the defendant refused to surrender his estate, lands and tenements, goods and chattels, not exempt from execution, but that he has such estate, lands and tenements, goods and chattels.

It will be noted that the statute then in effect provided that “upon filing such affidavit with the clerk of the court from which the execution issued . . . it shall be lawful for such clerk ... to issue a ca. sa. against the body of such defendant in execution.” It was undoubtedly because honest judgment debtors were too frequently subjected to unwarranted and unjust arrest and imprisonment under this mode of procedure and because it was too susceptible to abuse that the legislature was actuated to amend the statute by requiring among other things, an order of court for the issuance of a body execution, so that the liberty of judgment debtors would be afforded some measure of protection prior to their arrest and imprisonment. To that end section 62 of the Act relating to Judgments, Decrees and Executions (par. 65, ch. 77, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 107.215]) was enacted, prescribing a different mode of procedure for procuring a body execution. Said section is as follows:

“Sec. 62. If, upon the return of an execution unsatisfied, in whole or in part, the judgment creditor, or his agent or attorney, shall make an affidavit stating that demand has been made upon the debtor for the surrender of his estate, goods, chattels, land and tenements, for the satisfaction of such execution, and that he verily believes such debtor has estate, goods, chattels, lands or tenements, 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 estate, with a design to secure the same to his own use, or defraud his creditors; and also setting forth upon his knowledge, information and belief, in either case, the facts tending to show that such belief is well founded, and shall procure the order of the judge of the court from which the execution issued, or of any judge or master in chancery in the same county, certifying that probable cause is shown in such affidavit to authorize the issuing of an execution against the body of the debtor, and ordering that such writ be issued; upon the filing of such affidavit and order with the clerk,. he shall issue an execution against the body of such judgment debtor.”

For convenience this statute will sometimes hereinafter be referred to as section 62.

It was held in Huntington v. Metzger, 158 Ill. 272, that the foregoing section 62 did not violate the immunity from arrest secured to the debtor by the constitution. There the court said at p. 281:

“It would seem, however, from the recitals in the bill of exceptions, that appellee was charged by the affidavit, not only with a refusal to surrender his estate, etc., but also with fraudulently disposing of his estate with a design to secure the same to his own use, or defraud his creditors. Both of these grounds for arrest are within the contemplation of the constitution, which provides, that ‘no person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors in such manner as shall be prescribed by law, or in cases where there is strong presumption of fraud.’ (Const. 1870, art. 2, sec. 12).”

Plaintiff’s affidavit for body execution sets forth the entry of the judgment in his favor against Schwartz and the issuance of an alias execution based on said judgment, which together with a capias demand, was placed in the hands of the bailiff for service. A copy of the capias demand was included' in the affidavit and it concludes as follows: “You are further advised that if you fail to comply with this demand you are liable to arrest on a body execution and imprisonment thereunder in the County Jail.”

The affidavit then proceeded to allege:

“That the bailiff made a demand upon the judgment debtor for the surrender of his estate, goods, chattels, lands and tenements, for the satisfaction of such execution by handing him a copy of said execution, together with said certain capias demand and a copy of a certain debtor’s schedule, and informing him of the contents thereof, all in accordance with the statute in such case made and provided and the rules of this court; that thereafter the judgment debtor herein filed á schedule of all his property, both real and personal, claiming his exemptions, which debtor’s schedule was filed on or about the 12th day of June, 1942 and is in words and figures as follows: (Here appears a copy of the debtor’s schedule, in which he states that he is the head of a family consisting of himself, wife and two children, that he has no real estate, no cash on hand and no debts due and owing to him and lists certain household furniture, an office desk, wearing apparel and a 1933 Pierce-Arrow automobile, all subject to chattel mortgage with the exception of the wearing apparel, kitchen utensils and bedding.)

“That the judgment debtor herein has estate, goods, chattels, lands or tenements not exempt from execution which he unjustly refuses to surrender.

“That he verily believes that the said Emanuel M. Schwartz, the judgment debtor herein, has, since the debt was contracted, or the cause of action accrued, fraudulently concealed or otherwise disposed of a large part of his estate with a design to secure the same to his own use and to defraud his creditors.

“That some time prior to the issuance of the execution herein and the demand of the bailiff thereunder, but after the debt was contracted and the cause of action accrued, the judgment debtor herein executed a certain chattel mortgage together with Beatrice G. Schwartz, his wife, as mortgagor, granting, selling, conveying and confirming unto one Sol E. Fuchs, as mortgagee, certain goods and chattels, including household effects and a certain Pierce-Arrow automobile ; that said chattel mortgage purports to have been executed for a consideration of $750.00 alleged to have been paid by said Sol E. Fuchs,, and purports to have been given to secure the repayment of said sum of $750.00 alleged to be evidenced by a note of even date with said chattel mortgage for the sum of $750.00 due and payable on or before twenty-four months after date with interest at the rate of 5 per cent per annum, payable on maturity; that said chattel mortgage purports to be dated the 15th day of September, 1941 and was filed for record with the Recorder of Deeds for the County of Cook, at 4:13 P. M. on the 16th day of September, 1941 ....

“That he verily believes that said Chattel Mortgage was executed.by the judgment debtor herein without consideration and is fraudulent; that neither the purported consideration of $750.00 alleged in said chattel mortgage to have been paid by the said Sol E. Fuchs to the mortgagees [mortgagors] therein, including the judgment debtor herein, nor any part thereof was actually paid by said Sol E. Fuchs to said mortgagees [mortgagors]; nor did any other consideration flow from said Sol E. Fuchs to said mortgagees [mortgagors] ; that the note in the sum of $750.00, the payment of which is purported to be secured by said chattel mortgage was never executed by the mortgagees [mortgagors] therein, or if executed was done so without consideration; that the said chattel mortgage and said note were executed by said mortgagees [mortgagors], if at all, for the purpose of fraudulently concealing and disposing of a part of the estate of the judgment debtor herein with a design to secure the same to his own use and to defraud his creditors. ’ ’

Plaintiff contends that the provisions of section 62, heretofore set forth, “do not contemplate either a hearing as to the truth of the allegations contained in the affidavit or the giving of notice to the judgment debtor of the filing thereof, nor do they confer upon the court discretion to grant or refuse the application.”

Defendant’s position seems to be that he was entitled to notice of plaintiff’s application for the body execution and to a hearing on his objections to plaintiff’s affidavit filed in support of such application as to the truth of the facts set forth in said affidavit and that it was incumbent upon plaintiff to prove the charges of fraud made by him in his affidavit before the court would be warranted in ordering the issuance óf a body execution against him.

In so far as we have been able to ascertain the questions raised by defendant as to a judgment debtor’s right to a hearing as to the truth of the allegations contained in an affidavit of a judgment creditor for a body execution and as to a judgment debtor’s rigid to notice of the filing of such an affidavit have not heretofore been presented to or considered by any court of review in this State, notwithstanding that the aforesaid section 62, authorizing the issuance of body executions and prescribing the mode of procedure for procuring same, was enacted in 1872.

We agree with plaintiff’s contention that there is no provision in section 62 that requires or contemplates notice to a judgment debtor of an application for a body execution against him and the fact that defendant was given notice of plaintiff’s application in the instant ease may be disregarded. As was said in In re Keene, 15 R. I. 294, 3 Atl. 418, in construing a somewhat similar statute, to give notice “would in many cases defeat the purpose of the statute.” We also agree with plaintiff’s contention that there is no provision in section 62 that requires or contemplates a hearing on his affidavit filed in support of his motion for a body execution against defendant. We cannot agree with defendant’s contention that it was incumbent upon plaintiff in this proceeding to prove that Schwartz was guilty of fraud as charged in plaintiff’s affidavit. Not only is there no provision in the statute that requires or contemplates that plaintiff make such proof but the very language of the statute, that the court certify from the facts averred “that probable cause is shown in such affidavit,” precludes the requirement of proof of the facts alleged therein.

This brings us to the consideration of the question as to the sufficiency of plaintiff’s affidavit. He alleges therein in the language of the statute (1) that the “debtor has estate, goods, chattels, lands or tenements, not exempt from execution, which he unjustly refuses to surrender” and (2) 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 Ms estate, with a design to secure the same to his own use, or defraud his creditors.” Plaintiff argues that these two averments alone were sufficient to authorize the issuance of a body execution against defendant. They undoubtedly would have been under the statute in effect prior to the enactment of section 62 but it is readily apparent that they are insufficient to comply with all the requirements of said section. It will be recalled that under the former statutory procedure it was only necessary to present the affidavit to the clerk of the court, who would automatically issue a body execution. But this procedure was essentially changed hy section 62 for the reasons heretofore indicated. The vitally important change of procedure effected by said section is found in the additional requirement that the judgment creditor’s affidavit must set forth “upon his knowledge, information and belief, in either case, the facts tending to show that such belief is well-founded, and shall procure the order of the judge of the court from which the execution issued, or of any judge or master in chancery in the same county, certifying that probable cause is shown in such affidavit to authorize the issuing of an execution against the body of the debtor, and ordering that such writ be issued . . . .” It will be noted that under this requirement the facts alleged must be “upon his knowledge, information and beliéf, in either case.” This last quoted language can only mean that the facts must be alleged upon knowledge or information and belief. It will also be noted that facts must be alleged which tend to show that the judgment creditor’s belief is well-founded that the judgment debtor is guilty of unjustly refusing to surrender his estate or of fraudulently conveying, concealing, or otherwise disposing of same as charged in the affidavit for body execution and that the facts averred must be sufficient to warrant the court in certifying “that probable cause is shown in such affidavit to authorize the issuing of an execution against the body of the debtor” and in ordering the clerk to issue such execution.

The charge in plaintiff’s affidavit that defendant unjustly refused to surrender his estate for the benefit of his creditors may be disregarded, because there is not a single fact alleged therein either upon knowledge or information and belief that would tend to support such charge.

It was only in support of the charge in his affidavit that defendant had “fraudulently conveyed, concealed or otherwise disposed of some part of his estate with a design to secure the same to his own use or to defraud his creditors” that plaintiff made any pretense of alleging the facts required by the statute. The only facts alleged by plaintiff in his affidavit upon which he can possibly rely as tending to show that he had a well-founded belief that defendant had fraudulently concealed or otherwise disposed of his estate are those contained in paragraph 7 thereof.

It is alleged in said paragraph that plaintiff ‘ ‘verily believes” that the chattel mortgage was executed by the defendant without consideration; that defendant did not receive from Fuchs the $750 consideration for which the chattel mortgage was purportedly given or any part of said sum and that he received no other consideration from Fuchs; that defendant and his wife never executed the note for $750, the payment of which was purported to be secured by the chattel mortgage or “if executed, was done so without consideration”; and that" “said chattel mortgage ana said note were executed” by defendant and his wife, “if at all,” for the purpose of fraudulently concealing and otherwise disposing of a part of their estate.

Such facts as are set forth in this paragraph were alleged purely upon plaintiff’s belief and not upon his’ knowledge or information and belief as the statute requires. Since the statute provides that the alleged facts must tend .to show a “well-founded belief” that defendant was guilty of fraud as charged in the affidavit, it certainly could not have been' intended that such “well-founded belief” could have as its basis facts averred solely on belief. The express provision of the statute that facts must be alleged upon knowledge or information and belief which tend to show that “such belief is well-founded” can only mean that the belief must be “well-founded” on facts alleged either upon knowledge or upon information. It is entirely immaterial that plaintiff in his affidavit used the term “verily believes” in alleging the facts upon which he relied as tending to show that his belief was “well-founded” that defendant was guilty of the fraud charged and that there was probable cause for the issuance of a body execution. The term “verily believes” used in this connection has no more significance than if the affidavit merely stated that he “believed” the facts alleged. It is true that the statute permits the use of the term “verily believes” in alleging either or both of the grounds upon which the issuance of a body execution might be ordered but it precludes the averment of facts necessary to show probable cause merely upon belief and specifically provides that such facts must be alleged upon knowledge or information and belief and that the facts so alleged upon knowledge or information must be sufficient to induce a “well-grounded” belief that the judgment debtor against whom the body execution is sought has unjustly refused to surrender his estate or has fraudulently concealed or otherwise disposed of same. It is idle to urge that a “well-grounded” belief' can be predicated on facts alleged solely on belief. Since there is not a single fact alleged in paragraph 7 of plaintiff’s affidavit upon either knowledge or information, it must be held that said affidavit was insufficient to authorize the issuance of a body execution against defendant.

Plaintiff’s affidavit is also deficient in another respect. There can be no question but that the statute contemplated that, in setting forth facts to show probable cause, such facts must be alleged positively, whether upon knowledge or information and belief, and not by way of speculation. It is readily apparent that the allegations of paragraph 7 of plaintiff’s affidavit, heretofore set forth, with the exception of the averment that defendant received no consideration for the execution of the chattel mortgage, are indefinite and speculative or in the alternative. Such allegations were insufficient to warrant the court in certifying that probable cause was shown in the affidavit for the issuance .of a body execution.

It is quite obvious that section 62 vests no discretion in the trial court as to whether it will or will not order the issuance of a body execution. It is just as obvious that the statute imposes upon the trial court the duty of judicially determining whether facts are alleged in the affidavit either upon knowledge or information and belief which show that probable cause exists for the issuance of a body execution. In other words, the statute imposes upon the trial court the duty of determining as a matter of law the sufficiency of the affidavit (Huntington v. Metzger, supra, p. 298) and therefore it must determine that it strictly conforms to all of the requirements of section 62 before it can order a body execution to issue. '

It is suggested that a judgment debtor who is arrested on a body execution has a remedy in the county court under the Insolvent Debtors’ Act and that under section 5 thereof (par. 5, ch. 72, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 109.382]) he may traverse in said court charges of fraud or refusal to surrender his estate contained in a judgment creditor’s affidavit for body execution and have the question, whether he is guilty of fraud or of unjustly refusing to surrender his estate for the benefit of his creditors, tried by a jury. The fact that a judgment debtor has this remedy after his arrest does not relieve the court to which an application for body execution is presented from its obligation to reject same, if the affidavit filed in support thereof does not conform to all of the statutory requirements.

Defendant contends that a judgment entered in a garnishment proceeding which plaintiff instituted against the same Sol E. Fuchs mentioned in plaintiff’s affidavit for body execution is res judicata as to the Morris application for body execution against Schwartz. It is difficult to believe that defendant is serious in making this contention, since, as already shown, there is no. provision in the statute that even permitted him to participate in this proceeding in the court below.

Defendant also contends that a refusal to permit him to defend himself against the charges of fraud made in plaintiff’s affidavit “would be directly contrary to section 12 of article 2 of the Illinois Constitution of 1870 and is directly contrary to ‘due process of law’ as guaranteed to the defendant by section 2 of article 2 of the Illinois Constitution of 1870 and the 14th Amendment to the Constitution of the United States.” This contention does not merit serious consideration. As has been seen, the constitutionality of section 62 has been upheld by our Supreme Court (Huntington v. Metzger, 158 Ill. 272) and plaintiff having duly recovered his judgment, the constitutional requirement of “due process of law” was met. (In re Keene, 15 R. I. 294, 3 Atl. 418.) A motion was presented by defendant to transfer this cause to the Supreme Court on the ground that there were constitutional questions involved herein. We denied this motion, because, in our opinion, there are no debatable constitutional questions presented.

If plaintiff’s affidavit had conformed in all respects to the requirements of section 62, it was unquestionably the duty of the trial court to order the issuance of a body execution against defendant. If plaintiff’s affidavit did not conform in all respects to the requirements of section 62, it was just as much the duty of the trial court to refuse to order the issuance of a body execution against defendant.

If, as suggested, the statutory provisions in question authorizing the issuance of body executions and prescribing the mode of procedure for procuring same are unduly drastic, their modification is a matter for the legislature and not for the courts.

Inasmuch as we have determined after a careful examination of the allegations of plaintiff’s affidavit that it was insufficient to authorize the trial court to order the issuance of a body execution- against defendant and that it did not conform to all of the statutory requirements, we are impelled to hold that the trial court did not err in denying plaintiff’s motion for such body execution.

Since a correct result was attained by the order of the trial court denying plaintiff’s motion for a body execution against defendant, that order must be affirmed, even though the method of procedure followed by the trial judge in considering and disposing .of plaintiff’s application and affidavit was unquestionably improper and at variance with the procedure prescribed by section 62.

For the reasons stated herein the order of the municipal court of Chicago denying plaintiff’s motion for a body execution against defendant is affirmed and the order of said court overruling plaintiff’s motion to strike from the files the affidavit appended to defendant’s objections to plaintiff’s application for a body execution is reversed.

Order denying plaintiff’s motion for a body execution affirmed. Order denying plaintiff’s motion to strike defendant’s affidavit filed in support of his objections reversed.