{
  "id": 3040090,
  "name": "Nan Kearns, Defendant in Error, v. John Chocolowski, Plaintiff in Error",
  "name_abbreviation": "Kearns v. Chocolowski",
  "decision_date": "1921-12-19",
  "docket_number": "Gen. No. 26,304",
  "first_page": "117",
  "last_page": "119",
  "citations": [
    {
      "type": "official",
      "cite": "223 Ill. App. 117"
    }
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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": "207 Ill. App. 459",
      "category": "reporters:state",
      "reporter": "Ill. App.",
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    {
      "cite": "257 Ill. 431",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
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      "case_paths": [
        "/ill/257/0431-01"
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  "last_updated": "2023-07-14T20:26:13.743666+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Nan Kearns, Defendant in Error, v. John Chocolowski, Plaintiff in Error."
    ],
    "opinions": [
      {
        "text": "Mr. Justice McSurely\ndelivered the opinion of the court.\nBy this writ of error defendant, John Chocolowski, seeks the reversal of an order of the superior court denying the motion to quash a body execution, and to release defendant from custody of the sheriff.\nMay 21, 1919, Nan Kearns brought an action in tort against defendant, who was duly served with summons on May 22. The declaration file\u2019d consisted of two counts, the first charging that defendant negligently drove an automobile, injuring plaintiff, the second that defendant wantonly and wilfully drove the automobile so as to strike plaintiff. September 6, 1919, an order of default was entered against defendant for his failure to appear. June 21, 1920, the case was reached for trial and a jury was impaneled to assess plaintiff\u2019s damages, which were found to be $300, and judgment was entered on the verdict. A capias ad satisfaciendum was issued and served on defendant and August 16, 1920, he moved to vacate the judgment. This motion was denied. August 26, defendant moved to quash the capias, which was denied.\nSection 128 of the Practice Act, ch. 110 (Cahill\u2019s Ill. St. ch. 38, \u00b6 780), provides that no person shall be imprisoned for nonpayment of a judgment in any civil action except upon conviction by a jury, or when jury .trial is waived by a formal waiver in writing. In Manaster v. Kioebge, 257 Ill. 431, it was held that this act applies where defendant is defaulted for failure to appear, and the damages subsequently assessed by a jury. This is decisive of the instgnt case and the motion to quash the writ should have been allowed. See also In re Warnke, 207 Ill. App. 459.\nThe order of August 25, 1920, denying the motion to quash the capias ad satisfaciendum is reversed and the cause is remanded.\nReversed and remanded.\nDever, P. J., and Hatchett, J., concur.",
        "type": "majority",
        "author": "Mr. Justice McSurely"
      }
    ],
    "attorneys": [
      "William B. Keefe and S. M. Collins, for plaintiff in error.",
      "Daniel L. Madden and Boy C. Merrick, for defend- \u25a0 ant in error."
    ],
    "corrections": "",
    "head_matter": "Nan Kearns, Defendant in Error, v. John Chocolowski, Plaintiff in Error.\nGen. No. 26,304.\n1. Execution\u2014when order denying motion to quash body execution issued in personal injury case will be reversed. An order denying a motion to quash a body execution was reversed, where, in the personal injury case in question, an order of default was entered against the defendant for his failure to appear, although the damages for which judgment was entered were assessed by a jury.\n2. Execution\u2014when statute relating to imprisonment for nonpayment of judgment in civil action is applicable. Section 128 of the Practice Act, ch. 110 (Cahill\u2019s Ill. St. ch. 38, \u00b6 780), providing that no person shall be imprisoned for nonpayment of a judgment in any civil action except upon conviction by a jury, or when a jury trial is waived by a formal waiver in writing, applied in a personal injury case where defendant was defaulted for failure to appear and the damages were subsequently assessed by a jury, and the order denying a motion to quash a body execution was reversed.\nError to the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in this court at the March term, 1921.\nReversed and remanded.\nOpinion filed December 19, 1921.\nRehearing denied January 3, 1922.\nWilliam B. Keefe and S. M. Collins, for plaintiff in error.\nDaniel L. Madden and Boy C. Merrick, for defend- \u25a0 ant in error."
  },
  "file_name": "0117-01",
  "first_page_order": 145,
  "last_page_order": 147
}