Pierce's Appeal , 1883 Pa. LEXIS 113 ( 1883 )

Mr. Justice Tküxkey

delivered the opinion of the court,

In a proceeding in equity for an account between parties who had been partners in trade, a decree was entered in favor of the plaintiff for §526.34 and costs. It was the simple case of a dissolution of the firm, an agreement that one partner should settle the business, which he proceeded to do, and his subsequent refusal to account. Manifestly the decree is founded upon a contract either express or implied between the parties.

On May 15th 1882, the court “ordered that an attachment be issued against S. S. Pierce unless the plaintiff’s bill of costs be paid within sixty days.” Pierce had filed his affidavit setting forth that he was unable to pay, for the reason that he had no money or propert}’’ and was dependent on others, except what he could earn by his labor. Put such an affidavit, whether believed or not, could not prevent his arrest and imprisonment if he was subject to attachment for disobeying the decree. He claims exemption under section 1 of the Act of July 12th 1842, P. L. 339, which provides: “No person shall be arrested or imprisoned on any civil process issuing out of any court of this commonwealth, in any suit or proceeding instituted for the recovery of any money due upon any judgment or decree founded upon contract, or duo upon any contract, express or implied, or for the recovery of any damages for the non-performance of any contract, excepting in proceeding, as for contempt, to enforce civil remedies, action for fines or penalties, or on promises to marry, on moneys collected by any public office]', or for any misconduct or neglect in office, or in any professional employment.”

The statute applies alike to judgments at law and to decrees in equity, and prohibits arrest in every case upon contract, which is not included in the exceptions. Where it applies an attachment cannot be lawfully issued, for the party shall not be arrested and put to his answer to the satisfaction of the judge or chancellor, that he is unable to pay the judgment or decree, under pain of imprisonment. Its object being to prevent oppression of debtors, in furtherance of that end it should be liberally construed.

A creditor is no more entitled to process for an’est of the debtor for costs than for the debt which was the foundation of the suit. As respects remedy, the costs follow the judgment or decree for recovery of money, and when a statute exempts the defendant’s property from levy and sale, or his person from arrest, to enforce satisfaction of the debt, it also applies to the costs. In an action for a tort a judgment against the plaintiff for costs is not like damages against the defendant. A judgment for costs is to be considered in the same light as a judgment for debt on contract, so far as the exemption law affects the rights of parties. And it makes no difference that the costs accrued in an action of tort: Lane v. Baker, 2 Grant 424. That decision relates to the statute exempting property to value of $300 from levy and sale upon any judgment obtained upon contract, and surely a statute will be as favorably construed for the debtor which exempts him from arrest. Where no element other than a debt upon contract, enters into a judgment or. decree for recovery of money and costs, or for recovery of costs against a plaintiff who failed to establish his case, the party is not subject to attachment. Hor in this respect is there a distinction between costs and fees. If fees are not paid or secured at time of service by the officer, his claim upon the party at whose instance the service was rendered, is not among the matters excepted out of the operation of the statute. When fees remain unpaid, to be collected as costs recovered by a party, though the officer may have execution against the losing party, it shall be of the same nature as if issued by the person who recovered the judgment or decree. An Examiner’s or Master’s allowance for his services is on the same footing.

Where a person had been committed for non-payment of a decree for money and costs he was discharged from custody, without reference to a distinction between costs and debt. Chief Justice Lewis ruled that the words of the exception in the statute should not be construed to embrace constructive contempts, for the main object of the statute was to relieve from imprisonment in all cases where no offence appears except that of omitting to pay money due upon a contract; that whore there is evidence of fraud in disobeying the decree the statute prescribes the mode of procedure for investigating the facts, and also prescribes the remedies, if the fraud bo established ; and that the power to imprison for the purpose of enforcing payment of money due on a contract no longer exists. He said the ruling was concurred in by all the judges of the court, except one who was absent: Scott’s Case, 1 Grant 237; 2 Phila. 153.

In a bill for an account which was heard at nisi prius in 1874 upon bill, answer and proofs, the bill ivas dismissed with costs. Justice Shakswood refused to issue an attachment against the plaintiff: Cochran v. Gowen, 9 Phila. 299.

In Beidler v. Howell, S Phila. 273, an attachment for the costs was issued against the plaintiff, evidently on the authority of the rulo of this court, in force in the courts of common pleas, which expressly permits attachments for costs and for the Master’s compensation. Justice Paxson, then in the Commonl Pleas, remarking, “ It may be that (the Supreme Court) •will declare their own rule a nullity and in contravention of the Act of 1842, but we prefer not to be the first to say so.” These rules contravene 1he statute only in one class of cases ; in all others they are in strict accord with the law, as such rules were in all cases prior to the Act abolishing imprisonment for debt. Inquiry into the history of the adoption of the rules might reveal wiiy they provided for attachments to enforce decrees for costs, without exception, but the fact would remain that jnst to the extent that they are in conflict with the statute they are void. In many cases, perhaps in most, attachments may be issued to compel payment of a decree for money, or for costs, and the rules apply to such.

Arrest “ in proceeding, as for contempt, to enforce civil remedies ” is excepted from the operation of the Act. The nature of this exception is shown in Chew’s Appeal, 44 Pa. St. 247, where it was decided that a court of equity may issue an attachment against a trustee, as for contempt, who refuses to pay money in obedience to a decree founded upon the trust estate in his hands. It was said that an order upon one who is strictly a trustee to pay over trnst money in his hands is not a decree founded upon contract, either express or implied, in any ordinary sense of the word “ contract.” The obligation of a trustee grows out of a duty which the law imposes, and a breach of trust is a greater wrong than mere breach of promise to pay. The doctrine of that case aids in giving a rational construction to the exception of a proceeding, as for contempt, to enforce civil remedies — one that does not nullify the statute in a court of equity, nor in any court where judgments or decrees may be rendered for recovery of money upon a contract.

This is a final decree founded upon a contract, and for omission to pay either debt or costs the defendant cannot be punished as if guilty of a contempt. Were it doubtful whether an attachment could be properly issued the doubt should be solved against the writ.

Where a party obtains a continuance of his canso upon condition that he pay certain costs, or obtains an interlocutory order upon like condition, or certain costs are imposed upon him as a penalty for his default or misconduct in the course of the proceeding, an element exists that is not in this case, and we cannot now decide whether under such circumstances the court may justly enforce payment by attachment.

The order and decree, made May 15th 1882, “ that an attachment be issued against S. S. Pierce unless plaintiff’s bill of costs be paid within sixty days,” is reversed, and appellee to pay the costs.