{
  "id": 5191159,
  "name": "Margaret Swan v. Michael H. Mulherin",
  "name_abbreviation": "Swan v. Mulherin",
  "decision_date": "1896-11-19",
  "docket_number": "",
  "first_page": "77",
  "last_page": "79",
  "citations": [
    {
      "type": "official",
      "cite": "67 Ill. App. 77"
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "jurisdiction": {
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    "name_long": "Illinois",
    "name": "Ill."
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  "cites_to": [
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      "cite": "57 Ill. 371",
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      "reporter": "Ill.",
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    {
      "cite": "17 Ill. 101",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
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      "case_paths": [
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  "last_updated": "2023-07-14T17:00:34.097112+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Margaret Swan v. Michael H. Mulherin."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Shepard\ndelivered the opinion of the Court.\nIn an action of trespass de lonis asportatis, the plaintiff recovered a judgment for $165.40 against the'defendant in the Circuit Court, and, later, the defendant was arrested on a ca. sa. and confined in the county jail.\nUpon an application, afterward made, the Circuit Court quashed the capias, and the sole question here is, was such action right.\nIt is conceded that the action of the court in quashing the capias was based upon the act, approved June 17, 1893 to be found in the Laws of 1893, p. 96 (State Ed.), entitled, and as follows:\n\u201c An act to provide a trial by jury in all cases where a judgment may be satisfied by imprisonment.\nSection 1. Be it enacted (etc.), that no person shall be imprisoned for non-payment of a fine or a judgment in any civil, criminal, quasi-criminal or qui ta/w, action, except upon conviction by jury. Provided, that the defendant or defendants in any such action may waive a jury trial by executing a formal waiver in writing; and provided further, that this provision shall not be construed to apply to fines inflicted for contempt of court; and provided further, that when such waiver of jury is made, imprisonment may follow judgment of the court without conviction by a jury.\u201d\nSee, also, for the act, Sec. 631, Oh. 38, entitled \u201cCriminal Code,\u201d 1 Starr & Curtis\u2019 (2d Ed.) Annotated Statutes, and also See. 175, Ch. 79, entitled \u201c Justices and Constables,\u201d Hurd\u2019s Ed., Eev. Stat. 1895.\nIt is contended by plaintiff that the act applies only to justice\u2019s courts, and secondly, that if it applies to courts of record, there was a compliance with its provisions, because the record shows that \u201c the parties in open court submitted the cause to the court for trial without a jury.\u201d\nThere is no ground for the contention that the act has application only to cases before justices of the peace. It applies, by its very terms, to \u201c all cases (whether in justice\u2019s court, or a court of record) where a judgment may be satisfied by imprisonment.\u201d\nHor do we think that a record that \u201cthe parties submitted the cause to the court for trial without a jury,\u201d is a substantial compliance with the statutory requirement that a jury trial may be waived only by the defendant executing a formal waiver in writing.\nIt was the law before the act, that both parties might waive a jury in such cases, and when the legislature said that it should no longer be, unless the defendant executed a formal waiver in writing, it will be presumed that, in the view of the legislature, a mischief existed that needed to be remedied, and that the new legislation in such behalf was directed at the mischief and intended to remedy it. Courts, therefore, should not give such a construction to the legislation as would nullify it, except for very grave reasons.\n\u201c The grand object in construing statutes is to ascertain the will of the legislature; and to accomplish this, courts not only will look to the provisions and language of the whole act, but to the law as it was at the time of the passage of such act, to the cause and motive of the act, and the mischief to be remedied or avoided thereby.\u201d Zarreseller v. The People, 17 Ill. 101; Stribling v. Prettyman, 57 Ill. 371,\nThe Circuit Court could, with regard for the statute, do no less than quash the writ, and the judgment is accordingly affirmed.",
        "type": "majority",
        "author": "Mr. Presiding Justice Shepard"
      }
    ],
    "attorneys": [
      "E. A. Sherburne, attorney for plaintiff in error.",
      "Max Robinson, attorney for defendant in error."
    ],
    "corrections": "",
    "head_matter": "Margaret Swan v. Michael H. Mulherin.\n1. Jury Trial\u2014Application of the Act of 1893.\u2014The act of June 17, 1893, providing for a trial by jury in cases where the judgment may be satisfied by imprisonment, applies to all cases, whether in justice\u2019s courts or courts of record, where a judgment may be satisfied by imprisonment.\n2. Same\u2014Waiver of.\u2014Under the act of June 17, 1893, providing for a trial by jury in cases where the judgment may be satisfied by imprisonment, a jury trial can be waived only by the defendant executing a formal waiver in writing; a submission of the cause by the parties to the court without a jury is not sufficient.\n3. Construction of Statutes\u2014 Will of the Legislature.\u2014The grand object in construing statutes is to ascertain the will of the legislature, and to accomplish this, courts will not only look to the language o\u00ed the whole act, but to the law as it was at the time of the passage of such act, to the cause and motive of the act and the mischief to be remedied or avoided thereby.\nMotion, to quash execution. Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding.\nHeard in this court at the October term, 1896.\nAffirmed.\nOpinion filed November 19, 1896.\nE. A. Sherburne, attorney for plaintiff in error.\nMax Robinson, attorney for defendant in error."
  },
  "file_name": "0077-01",
  "first_page_order": 75,
  "last_page_order": 77
}