{
  "id": 5277002,
  "name": "Raphael Subim, for the use of Seward S. Shirer, v. Jacob Isador et al.",
  "name_abbreviation": "Subim ex rel. Shirer v. Isador",
  "decision_date": "1900-03-13",
  "docket_number": "",
  "first_page": "96",
  "last_page": "101",
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      "cite": "7 Ill. App. 272",
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  "last_updated": "2023-07-14T16:36:14.009445+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Raphael Subim, for the use of Seward S. Shirer, v. Jacob Isador et al."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Shepard\ndelivered the opinion of the court.\nThis is a suit in trespass, for false arrest and imprisonment, brought by appellant against appellees.\nTo appellees\u2019 special plea of justification appellant demurred, and the demurrer being overruled appellant elected to stand by his demurrer, and judgment for costs went against him.\nThe special plea of justification set forth the proceedings in a suit brought by appellee Isador, against the appellant, before a justice of the peace, wherein a judgment in tort was rendered against appellant, upon which the body execution issued, under which appellant was arrested and imprisoned.\nIt is submitted by appellant that the justice of the peace lost jurisdiction over the defendant (appellant) by ordering a continuance of the suit, because the transcript of such proceedings, set up in the special plea, does not show that either of the parties, plaintiff or defendant, were present and asked for a continuance.\nUnder the date to which the summons was returnable, and upon which the case Avas continued by the justice, the entry is, \u201c Case called and continued to,\u201d etc.\nThe argument is that the justice had no authority or jurisdiction to continue the case, except as conferred by the statute.\nThe sections of the statute under which a justice of the peace is given authority to continue suits for any cause, are believed to be embodied in Sections 37, 38, 67 and 68, Chap. 79, Rev. Stat., entitled \u201cJustices and Constables,\u201d Hurd\u2019s Ed. 1898, which need not be here reproduced.\nThe record of the proceedings before the justice, including the summons and return, as set forth in the plea, discloses that the justice had jurisdiction of the person of the defendant and of the subject-matter of the suit, and the intendment and presumption of law follows that he continued the case for some legal cause, in accordance with the statute.\nSuch is the holding in Crichton v. Beebe, 7 Ill. App. 272, and is the substance of Avhat was held in Payne v. Taylor, 34 Ill. App. 491, and the doctrine commends itself to us upon reason. As said by Mr. Justice Phillips, in the last cited case: \u201c Technical accuracy in transcripts by justices of the peace can not be required.\u201d\nWhere it appears on the face of the record that the justice has jurisdiction of the persons and subject-matter, and the record shoAvs a plain purpose by the justice to follow the laAV, we hold that it is proper to indulge in inferences in aid of the justice\u2019s transcript in respect of the regularity and legality of the steps taken by the justice as thereon shown. Payne v. Taylor, supra.\nIn other words, as applied to this case, it appearing by the transcript of the justice\u2019s docket that the case was called and continued, we will infer that the continuance was made for some one of the causes provided for by the statute.\nThe next point is that the special plea should have set forth facts showing that the judgment upon which the body execution issued was a tort judgment.\nThe plea sets forth the verdict of the justice\u2019s jury, the judgment in tort on the verdict, and the issuance and service of the body execution under which the alleged imprisonment was made.\nThe verdict was:\n\"We, the jury, find the defendant guilty of false and fraudulent \u25a0 representations and fraudulently contracting the indebtedness sued for, and assess the plaintiff\u2019s damages at the sum of two hundred dollars ($200).\u201d\nIt was held by this court in Blattau v. Evans, 57 Ill. App. 311, that a verdict substantially like this one was equivalent to a finding by it that malice was the gist of the action, and, by inference, the form of verdict was approved.\nThe judgment rendered upon the verdict was one in tort and in proper form, as was also the body execution regular and proper on its face, and together they constituted a sufficient justification by the officer and plaintiff for the defendant\u2019s arrest, without a setting forth, in the plea, of the evidence or facts upon which the judgment was based.\nThe next point is that it is not made to appear by the plea that the body execution was issued at the election of the plaintiff, and Section 120, Oh. 79, E. S., is referred to, which provides:\n\u201c Upon all judgments in actions in tort * * * the justice may issue an execution against the body or goods and chattels of the defendant, at the election of the plaintiff.\u201d\nThe justice\u2019s transcript, as set forth in the plea, shows under a date more than twenty days after the rendition of the judgment, an entry of \u201c Body execution ordered and issued to Constable Chase.\u201d\nWe read such entry as meaning that the body execution was ordered by the plaintiff, he or his attorney being the only person who might rightfully order the execution to issue, and, of course, an ordering of a body execution was equivalent to an election to have it issued. But if there be any doubt about it, then the inferences we have already spoken of would aid the transcript. See also Outlaw v. Davis, 27 Ill. 466, where it was held, in the case of a capias issued by a justice of the peace, that it would be presumed that the justice required, the record being silent in regard thereto, such an oath to be made as the law required.\nThe further point is made that the body execution is void, because it does not specify or limit the time of imprisonment thereunder.\nThe execution is in the precise form prescribed for executions against the body, by section 123 of the justices and constables act, but the argument is that said section has been modified by the\u2019subsequent enactment of section 34 of the insolvent debtors act, which provides, among other things:\n\u201cHo person heretofore or hereafter imprisoned under the provisions of this act shall be imprisoned for a longer period than six months from the date of arrest.\u201d\nEven if it be conceded that 'the insolvent debtors act. has application to a c\u00e1se of arrest or imprisonment where malice is the gist of the action, the defendant would not be entitled to an absolute release at the end of six months, or sooner, without compliance with other provisions of, the same act in respect of scheduling his property.\nIn the absence of such a compliance, and an order of the County Court thereunder discharging him, a defendant in a body execution has not an absolute right to be discharged until the execution against him has been satisfied at the rate of one dollar and a half per day of imprisonment.\nThe last point is that the officer\u2019s return of the body execution does not show a compliance with the mandate of the writ.\nThe mandate of the writ is that the constable, for want of goods, etc., deliver the body of the defendant \u201c to the keeper of the jail of said (Cook) county,\u201d etc. The return is that the officer has \u201ccommitted the said defendant to the common jail of Cook county,\u201d etc. This we regard as compliance with the writ and a sufficiently good return.\nWith regard to the second subdivision of the last point, that the return does not show a personal demand upon the defendant for satisfaction of the judgment and a refusal by/ the defendant to satisfy the same, the return seems, in our opinion, to be explicit in respect of both the demand and refusal.\nAll the points made having been disposed of, it remains only to affirm the judgment. Affirmed.",
        "type": "majority",
        "author": "Mr. Justice Shepard"
      }
    ],
    "attorneys": [
      "William H. Slack and Joseph V. Crane, attorneys for appellant.",
      "Ives & Tone, attorneys for appellees,"
    ],
    "corrections": "",
    "head_matter": "Raphael Subim, for the use of Seward S. Shirer, v. Jacob Isador et al.\n1. Justices of the Peaoe\u2014Technicality in Proceedings Before.\u2014 Technical accuracy in transcripts of proceedings by justices of the peace can not be required.\n3. Same\u2014Presumptions in Favor of Regularity.\u2014Where it appears on the face of the record that the justice has jurisdiction of the person and subject-matter of the litigation, and the record shows a plain purpose by him to follow the law, it is proper to indulge an inference in aid of his transcript in regard to the regularity and legality of the steps taken by him as shown therein,\n3. Same\u2014Malice, When the Gist of the Action.\u2014A verdict finding the defendant guilty of false and fraudulent representations in contracting the indebtedness sued for, is equivalent to a finding that malice is the gist of' the action.\n4. Execution\u2014 When to Issue Against the Body.\u2014Upon all judgmente in tort, justices of the peace may issue executions against the body or goods and chattels of the defendant, at the election of the plaintiff.\n5. Same\u2014Not Void Because it Nails to Limit the Imprisonment.\u2014 An execution against the body of a judgment debtor in the form proscribed by Sec. 133 of the justices and constables act is not void because it omits to limit the imprisonment under it to six months from the date of the arrest.\n6. Presumptions\u2014In Aid of Justices\u2019 Transcripts\u2014Body Executions.\u2014Where a justice\u2019s transcript contains the entry,\" body execution ordered and issued to Constable Chase,1\u2019 such entry will be read as meaning that such execution was ordered by the plaintiff, he or his attorney being the only persons who might rightfully order it to issue, and an ordering of such an execution is equivalent to an election to have it issued.\n7. Same\u2014-As to the Oath Required in Issuing Capias.\u2014Where a capias has been issued by a justice of the peace it will be presumed that he required such an oath to be made as the law required (the record being silent in regard thereto). \u2022\nTrespass for False Imprisonment.\u2014Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.\nAffirmed.\nOpinion filed March 13, 1900.\nWilliam H. Slack and Joseph V. Crane, attorneys for appellant.\nIves & Tone, attorneys for appellees,"
  },
  "file_name": "0096-01",
  "first_page_order": 120,
  "last_page_order": 125
}
