Appeal from the Circuit Court of Cook County, County
Department; the Hon. CHARLES S. DOUGHERTY, Judge, presiding.
Reversed and remanded with directions.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Plaintiff appeals from an order denying its petition that defendant, Hilda Maloney, be committed to the custody of the Sheriff.
On August 13, 1962, plaintiff obtained a judgment for $13,233.59 against defendant, Hilda Maloney, (a former employee of plaintiff) for breach of her fiduciary duty (wilful misappropriation of plaintiff's money) with a special finding that malice was the gist of the action. *fn1 On June 24, 1964, a body execution was issued against the defendant. She surrendered into custody and was immediately brought to court for a hearing as to whether the body execution should have been issued. The hearing was continued on various occasions (defendant being free on her personal bond) until March 15, 1966, at which time plaintiff filed its petition to commit the defendant to custody. The matter was continued until April 19. On April 12 defendant filed a motion to strike the plaintiff's petition on the ground that "defendant is making satisfactory restitution and has been punished." On April 19 plaintiff's motion was denied, from which plaintiff appeals.
Defendant contends that the trial court has the discretionary power to discharge a body execution; and that since defendant was satisfying the judgment on installment payments the trial judge properly exercised his discretion in denying the plaintiff's motion. Defendant does not contend that the body execution was improperly issued nor that the judgment and interest had been fully paid.
The circumstances under which a body execution may be issued against a defendant are set forth in Illinois Revised Statutes, 1963, chapter 77, section 5:
No execution shall issue against the body of the defendant except when the judgment shall have been obtained for a tort committed by such defendant, and it shall appear from a special finding of the jury, or from a special finding by the court, if the case is tried by the court without a jury, that malice is the gist of the action, and except when the defendant shall refuse to deliver up his estate for the benefit of his creditors. *fn2
The procedure subsequent to the arrest of a debtor by virtue of a body execution is set forth in Illinois Revised Statutes, 1963, chapter 77, section 68:
When a debtor is arrested by virtue of an execution against his body, he shall be immediately taken before the court out of which the execution issued. The court shall proceed in a summary manner to hear the evidence, if any, as to whether the execution against the body should have been issued. If upon such hearing the court finds that the body execution was not properly issued under the provisions of this Act it shall order that the body execution be quashed and that the judgment debtor be discharged from custody; but such discharge shall not affect the right of the judgment creditor to collect the judgment otherwise than by execution against the body of the judgment debtor. If, in a case where the body execution was issued under the provisions of Section 62, the court finds that the allegations of the affidavit required by that Section have been proved or if, in a case where the judgment was obtained for a tort and there was a special finding that malice was the gist of such action as required by Section 5 of this Act, the court finds that the body execution was properly issued in such case, it shall order that the judgment debtor be conveyed to the county jail and kept in safe custody until he shall satisfy the judgment or be discharged according to law. The court may continue such hearing from time to time and in such case it shall either remand the judgment debtor into the custody of the sheriff or other officer of the court or allow him to give bond for his appearance from time to time until the proceedings are concluded, such bond to be in such sum and with such security as the court directs. (Emphasis supplied.)
Under section 68, as aforequoted, the court shall hold a hearing to ascertain whether the body execution was properly issued and that hearing may be continued from time to time. *fn3 There is no provision in the statute granting a trial judge the power or discretion to discharge a debtor from the body execution where the execution was properly issued. In the instant case it is undisputed that the judgment has not been satisfied. Furthermore, defendant has never contended in the court below or on appeal that the body execution was improperly issued. In her brief filed in this court defendant states: "The matter of the Court making a finding as to whether or not the Writ should have been issued was not before the Court it appearing from the record herein on file that the writ was properly issued." We therefore find that the trial judge erroneously denied the plaintiff's petition.
Plaintiff also appeals from the denial of that portion of its motion (filed November 30, 1965) in which it requested the court to apportion the payments made by the defendant between interest and principal. Upon an examination of the record on appeal we find that no ruling was ever made on that portion of plaintiff's motion, and therefore the issue is not before us.
The order of the trial court denying plaintiff's petition that defendant be committed to custody is reversed and the cause remanded with directions that the trial court enter an order granting the relief requested in plaintiff's petition of March 15, 1966.
Reversed and remanded with directions.