{
  "id": 2492541,
  "name": "Schwarzschild & Sulzberger v. Louis Goldstein",
  "name_abbreviation": "Sulzberger v. Goldstein",
  "decision_date": "1905-05-29",
  "docket_number": "Gen. No. 11,940",
  "first_page": "1",
  "last_page": "4",
  "citations": [
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      "cite": "121 Ill. App. 1"
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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  "cites_to": [
    {
      "cite": "22 Ill. 214",
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      "reporter": "Ill.",
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    {
      "cite": "57 Ill. App., 311",
      "category": "reporters:state",
      "reporter": "Ill. App.",
      "case_ids": [
        856612
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      "case_paths": [
        "/ill-app/57/0311-01"
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  "last_updated": "2023-07-14T19:30:46.479318+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Schwarzschild & Sulzberger v. Louis Goldstein."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Adams\ndelivered the opinion of the court.\nAppellant\u2019s attorney, before a jury was called, offered in evidence the justice\u2019s transcript, and moved the court, on the transcript, to remand the appellee to custody, which motion the court overruled. Counsel cite numerous cases to the effect that whether malice is the gist of an action must be determined by inspection of the record; that is, by inspection of the pleadings, showing what the issues were. The cases cited are all cases in courts of record, in which, consequently, pleadings are required, and have no application whatever to cases before justices of the peace, in which there are no written pleadings. Counsel for appellant correctly say that, in the court of a justice of the peace the action is what the evidence makes it, citing Blattau v. Evans, 57 Ill. App., 311; Block v. Blum, 33 ib., 644; Steele v. Hill, 35 ib. 211, and Swingley v. Haynes, 22 Ill. 214. This being true, the County Court could not determine, from the transcript of the proceedings before the justice, what the nature of the action was, or whether malice was of the gist of the action; because the evidence before the justice is not preserved in the transcript, or in any other way. Therefore, the court properly refused to grant appellant\u2019s motion. Moreover, appellee was entitled, under section 5 of the Insolvent Debtor\u2019s Act, to have the question whether he was guilty of fraud, as counsel charg\u00e9, tried by jury.\nCounsel contend that the verdict is against the weight of the evidence, and that some of th\u00e9 instructions are erroneous; but we do not think it necessary to discuss these contentions, as we think the judgment must be affirmed on a ground not discussed by counsel. The action was for a tort, as clearly appears from the evidence, and as appellant\u2019s counsel claim. Section 3 of article 11 of the act in relation to justices of the peace and constables is as follows: \u201cUpon all judgments in actions of tort, or where the defendant is in custody, or has been held to bail upon a capias, as provided in this act, the justice may issue an execution against the body or goods and chattels of the defendant, at the election of the plaintiff.\u201d Hurd\u2019s Stat. 1903, p. 1167. Election is \u201cthe act of choosing.\u201d As used in the law, it is thus defined: \u201cLaw: The choice made by a party of two alternatives, by taking one of which the chooser is excluded from the other.\u201d. Webster\u2019s Dictionary. The- word election is generally used, in the law, in a case where a party has two inconsistent-remedies; but no question as to inconsistent remedies can arise under section 3, because the section expressly mentions two things and requires the plaintiff to elect between the two, namely, between an execution against the body and an execution against the goods and chattels of the defendant. The section cannot he otherwise understood, without practically eliminating from it the words \u201cor\u201d and \u201celection,\u201d which would he contrary to the fundamental rule that effect must be given, if possible, to every word of a statute. Had the legislature intended that a plaintiff should, in cases ex delicto, have both remedies, it would have been so expressed, as in the case of a fine imposed by a justice, in the exercise of ' his criminal jurisdiction. \u25a0 \u25a0\nSections 7 and 8 of article 18, chapter 79, authorize the justice, when a fine is imposed, to issue, first, execution against the goods and chattels of the defendant, and, if the same shall be returned nulla bona, to issue a capias against the body of the defendant-. Hurd\u2019s Stat. 1903, p. 1173.\nThe transcript of the proceedings before the justice, in this case, was put in evidence by appellant, and shows that Hay 23, 1903, the appellant caused an execution to be issued against the goods and chattels of appellee. This was an election, and, therefore, the capias issued October 19, 1903, was unauthoriz\u00e9d by law. While appellee might have been discharged on habeas corpus, and perhaps such was the proper remedy, appellant is not in a position to object to the remedy pursued, and substantial justice having been done by the judgment discharging appellee from imprisonment, the judgment will be affirmed. Affirmed.",
        "type": "majority",
        "author": "Mr. Justice Adams"
      }
    ],
    "attorneys": [
      "Wheeler, Silber & Isaacs, for appellant.",
      "Elijah H. Zolihe, for appellee."
    ],
    "corrections": "",
    "head_matter": "Schwarzschild & Sulzberger v. Louis Goldstein.\nGen. No. 11,940.\n1. Form of action\u2014how determined in justice court. The form of an action instituted before a justice of the peace is what the evidence makes it,\n2. Malice\u2014how question as to whether, is gist of action, determined. Where the action in question was instituted before a justice of the peace, such question cannot be determined as a matter of law from an inspection of the docket of the justice but must be ascertained by resort to the evidence heard in the cause.\n3. Capias\u2014when improperly used. The plaintiff in an action of tort may elect whether he have an execution against the body of the defendant or against his goods and chattels, and having had an execution against the goods and chattels of the defendant, the subsequent issue of a capias against his body is without jurisdiction and' void.\n4. Habeas corpus\u2014when proper remedy. Habeas corpus is the proper remedy by which to seek discharge from arrest under a void capias.\nAction of replevin. Appeal from the County Court of Cook County; the Hon. Obrin N. Carter, Judge, presiding. Heard in this court at the October term, 1904.\nAffirmed.\nOpinion filed May 29, 1905.\nStatement by the Court. Appellant sued appellee in replevin before a justice of the peace. The writ of replevin was returned property not found. The plaintiff, May 22, 1903, the defendant, Goldstein, not appearing, called for a jury of six, and the jury, after hearing evidence, rendered the following verdict:\n\u201cWe, the jury, find the issues for the plaintiff and also find that the defendant fraudulently took and fraudulently and with intent then and there to cheat and defraud the plaintiff on the eighth day of May, 1903, at Chicago, Illinois, converted to his own use six barrels of beef tongues, the property of the plaintiff, of the value of one hundred and forty-seven dollars, and assess the plaintiff\u2019s damages at the suin of one hundred and forty-seven dollars in trover.\u201d\nThe form of the verdict was prepared by the attorney for the plaintiff, presumably with the approval of the justice. The justice rendered the following judgment:\n\u201cWhereupon it is considered by the court that the -said plaintiff have and .recover of and from the said defendant the said sum of one hundred and forty-seven dollars in tort for its damages in form as by the jury .assessed, with costs.\u201d\nMay 23, 1903, on affidavit made b.y plaintiff\u2019s agent, execution was issued against the goods and chattels of the defendant, and was delivered to a constable, and was returned the same day endorsed: \u201cMo property found, no part satisfied.\u201d October 19, 1903, the plaintiff sued out from the justice and delivered to a constable a writ of capias ad satisfaciendum or execution against the body of the defendant, on which writ the defendant was arrested.\nOctober 20, 1903, the defendant petitioned the County Court-to be discharged, from imprisonment in pursuance of the act concerning insolvent debtors, (Hurd\u2019s Hev. Stat. 1903, p. 1045) alleging that he was not guilty of fraud or. malice, and that October 5, 1903, he obtained from the United States District Court a discharge in bankruptcy, and that the plaintiff\u2019s debt was included in his schedule. The plaintiff answered, denying these averments, and such proceedings were had that a jury found the defendant, Gold-stein, not guilty, and judgment for costs was rendered against the plaintiff, from which judgment this appeal is.\nWheeler, Silber & Isaacs, for appellant.\nElijah H. Zolihe, for appellee."
  },
  "file_name": "0001-01",
  "first_page_order": 19,
  "last_page_order": 22
}