Summary
In Dunwoody Co. v. Washington, 315 Ill. App. 54, 42 N.E.2d 113, where the appeal was taken from a judgment of the Municipal Court of Chicago, the court cites with approval Kryl v. Zelezny, supra, and uses the same omission as one of the grounds for reversing the judgment in part.
Summary of this case from Forsberg v. HarrisOpinion
Gen. No. 41,962.
Opinion filed June 1, 1942.
1. EXECUTIONS, § 91 — averments of complaint for body execution. Where there was no prayer for a writ of capias in plaintiff's statement of claim, there was no jurisdiction to order a body execution against defendant.
See Callaghan's Illinois Digest, same topic and section number.
2. EXECUTIONS, § 92fn_ — necessity judgment show malice gist of action. Where a body execution was ordered against a defendant, and the judgment did not show on its face that malice was the gist of the action, the part of the judgment ordering body execution to issue was reversed.
3. APPEAL AND ERROR, § 586fn_ — effect of appeal on jurisdiction of trial court. Where a defendant appealed from that part of a judgment ordering body execution against him, and while the appeal was pending, plaintiff secured an order from the trial court purporting to amend nunc pro tunc the judgment entered by inserting a finding that malice was the gist of the action, the order was void, in that when the appeal was perfected, further proceedings by the trial court were barred.
Appeal by defendant from the Municipal Court of Chicago; the Hon. FRANK E. DONOGHUE, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1941. Reversed in part. Opinion filed June 1, 1942.
GEORGE B. HOLMES, of Chicago, for appellant.
C. JEROME BISESI, of Chicago, for appellee.
Defendant J.S. Washington appeals from that portion of a judgment entered in the above entitled cause which ordered the issuance of a capias against him.
The action was originally against Ida Davis, alone, upon a promissory note, and judgment was rendered against her by confession on February 15, 1940; subsequently, January 10, 1941, on motion of plaintiff this judgment was vacated and leave was granted to change the form of action from contract to tort and to make J.S. Washington an additional party defendant.
March 22, 1941 an amended statement of claim was filed; May 29 an order was entered finding Washington in default and the case was set down for trial on the same day before a jury, which, in answer to an interrogatory as to whether malice was the gist of the action, returned an answer, irregular in form, but which might be construed as in the affirmative. On the same day the court entered an order that plaintiff have judgment on the verdict and recover from defendant Washington damages of $560, and concludes, ". . . and that execution issue therefor, and that body execution issue against defendant." Motion to vacate the judgment was denied and defendant Washington appeals from that part of the judgment ordering body execution against him.
There are at least two reasons why this appeal must prevail. In plaintiff's statement of claim there is no prayer for a writ of capias. In Kryl v. Zelezny, 290 Ill. App. 599 (Abst.), the judgment was reversed for the reason that the complaint did not ask for a finding that malice was the gist of the action, and therefore the court was without jurisdiction to enter such an order.
The other reason is that in Ingalls v. Raklios, 373 Ill. 404, our Supreme Court held that before an execution for the body of the defendant shall issue, the judgment must show on its face that malice was the gist of the action. The instant judgment fails to show this.
While the appeal was pending in this court and the record and defendant's brief filed, plaintiff on November 12, 1941 secured from the trial court an order purporting to amend, nunc pro tunc, the judgment entered May 29, 1941 by inserting a finding that "malice is the gist of the action." This order is void for many reasons — principally because when the appeal to this court was perfected, any further proceedings by the trial court were barred. Hohenadel v. Steele, 237 Ill. 229.
That part of the judgment of May 29, 1941 which ordered that body execution issue against the defendant, is reversed.
Reversed in part.
MATCHETT and O'CONNOR, JJ., concur.