{
  "id": 2833178,
  "name": "In Re Jacob H. Smyser; Lena Amborn, Appellee, v. Jacob H. Smyser, Appellant",
  "name_abbreviation": "Amborn v. Smyser",
  "decision_date": "1913-10-13",
  "docket_number": "Gen. No. 17,873",
  "first_page": "208",
  "last_page": "209",
  "citations": [
    {
      "type": "official",
      "cite": "182 Ill. App. 208"
    }
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "109 Ill. 31",
      "category": "reporters:state",
      "reporter": "Ill.",
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    {
      "cite": "101 Ill. 391",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        2817719
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      "case_paths": [
        "/ill/101/0391-01"
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  "last_updated": "2023-07-14T17:04:20.195306+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "In Re Jacob H. Smyser. Lena Amborn, Appellee, v. Jacob H. Smyser, Appellant."
    ],
    "opinions": [
      {
        "text": "Mb. Pbesiding Justice Baker\ndelivered the opinion of the court.\nIn trespass for assault and false imprisonment brought by Lena Amborn against appellant, plaintiff had judgment for five thousand five hundred dollars. A capias ad satisfaciendum was issued on the judgment and defendant, appellant here, was arrested on the writ. He filed his petition in the County Court to be released from such arrest and tendered his schedule which the court refused to accept, dismissed his petition and defendant appealed.\nThe decision turns on the question whether malice was the gist of the action in which the judgment was rendered.\n\u201cThe intention to do harm is the essence of an assault.\u201d Greenleaf\u2019s Ev. sec. 33.\n\u201cIn order to, constitute false imprisonment there must be a detention and the detention must be unlawful.\u201d 3 Bl. Com. 127.\nIn First Nat. Bank of Flora v. Burkett, 101 Ill. 391, it is said (p. 394): \u201cMalice * * * in some cases implies a wrong inflicted on another with an evil intent or purpose, and this is the sense in which it is employed in this statute. It requires the intentional perpetration of an injury or wrong on another. The wrong and intention to commit the injury are necessary to deprive the party of the right to a discharge from arrest or imprisonment. In this case there was an intentional wrong, little, if anything, short of a criminal act, and it was malicious, in the statutory sense.\u201d\nIn Re Murphy, 109 Ill. 31, it was held that under the rule stated in the Bank of Flora case, supra, malice was the gist of an action for assault and battery, \u201cwithin the sense of the word \u2018malice\u2019 as used in the statute.\u201d\nWe are unable to perceive any ground on which it can be held that malice is the gist of an action of assault and battery and not of an action , for false imprisonment. In both actions there must be a wrongful act done intentionally without just cause or excuse, and such an act so done is malicious in the statutory sense.\nThe judgment is affirmed.\nAffirmed.",
        "type": "majority",
        "author": "Mb. Pbesiding Justice Baker"
      }
    ],
    "attorneys": [
      "Geeting, Potts & Van Dellen, for appellant.",
      "Louis Levy, for appellee."
    ],
    "corrections": "",
    "head_matter": "In Re Jacob H. Smyser. Lena Amborn, Appellee, v. Jacob H. Smyser, Appellant.\nGen. No. 17,873.\n1. Assault and battery, \u00a7 1 \u2014what constitutes. In an action for assault there must be a wrongful act done intentionally without just cause or excuse, and such an act is \u201cmalicious\u201d in the statutory sense.\n2. False imprisonment, \u00a7 3*\u2014what is element of tort. In an action for false imprisonment there must be a wrongful act done intentionally without just cause or excuse, and such an act is \u201cmalicious\u201d in the statutory sense.\n3. Execution, \u00a7 279*\u2014when execution against the person is authorised. Where a defendant was arrested a capias ad satisfaciendum issued on a judgment rendered in trespass for assault and false imprisonment, held that the dismissal of his petition for release from arrest was proper, malice being the gist of the action in which the judgment was rendered.\nAppeal from the County Court of Cook county; the Hon. John E. Owens, Judge, presiding. Heard in this court at the October term, 1911.\nAffirmed.\nOpinion filed October 13, 1913.\nGeeting, Potts & Van Dellen, for appellant.\nLouis Levy, for appellee.\nSee Illinois Notes Digest, Vols. XI to XXV, same topic and section number."
  },
  "file_name": "0208-01",
  "first_page_order": 232,
  "last_page_order": 233
}