
    The Second National Bank of Sandusky v. Becker, et al.
    
      Imprisonment for debt forbidden in civil actions — Section 15 of Bill of Rights- — -Nature of money obligations — Enforcement of delivery of attached property — Section 5556, Rev. Stat.— Proceedings in contempt against sureties on undertaking — Cannot be imprisoned in default of payment, when — Judgment against sureties in action against principal, without due process of law, when.
    
    1. Money obligations arising upon contract, express or implied, and judgments rendered thereon, are debts within the purview of section 15 of the Bill of Rights, which forbids imprisonment for debt in civil actions.
    2. Section 5556, of the Revised Statutes, and the provisions therein referred to relating to proceedings in contempt, must be so construed, and restrained in their operation, as to avoid conflict with the inhibitions of the constitution, and, in so far as they are in derogation of personal liberty, should receive a strict construction.
    3. An order made in a proceeding in contempt against sureties on an undertaking for the redelivery of attached property by the principal, requiring'them to pay the judgment recovered against the principal, and directing that in default of such payment they shall be imprisoned in the county jail until they shall pay the judgment, is in contravention of their constitutional right of exemption from imprisonment for debt.
    4. Judgment rendered against the sureties in such summary proceeding, for the amount of the judgment recovered against the principal in an action to which they were not made parties, is without due process of law, there having been no suit brought against them on the undertaking, nor opportunity given them to plead or defend according to the usual course of legal proceedings.
    (Decided March 20, 1900.)
    Error to the Circuit Court of Erie County.
    The Second National Bank of Sandusky, Ohio, commenced an action in the court of common pleas of Erie county, against William Becker, on two n®tes made by him amounting to nearly nine hundred dollars, and at the same time sued out an attachment against his property. The writ was levied on certain chattel property of the defendant which Avas inventoried and appraised at $1,585.00. After the levy and appraisement, the property Avas delivered by the sheriff to the defendant, Avhen W. W. WoodAvard and John Iliest as his sureties, executed and gave to the sheriff the following undertaking:
    
      “Knoio all Men by these Presents, That we, W. W. WoodAAard and John Diest, are held and firmly bound unto the said The Second National Bank of San-dusky, Ohio, plaintiff, in the sum of three thousand dollars ($3,000.00), to the payment of which Avell and truly to be made, Ave do hereby jointly and severally bind ourselves, our heirs, executors and administrators. Signed by us and dated this 19th day of January, A. D. 1895.
    The condition of the above obligation is such: That, Avhereas, A. A. Magill, sheriff of Erie county, Ohio, has this day attached the folloAving goods and chattels found in the possession of William Becker, on an order of attachment issued from the court of common pleas for said county of Erie, in an action wherein the said the Second National Bank of San-dusky is plaintiff, and the said William Becker defendant, as the property of the said William Becker, to-wit: 2 wine presses, $100 each, $200; 11 wine casks, 1300 gallons each, $350; 4 wine filters, $75; 19 wine casks, 2,000 gallons each, $960; total, $1,585.
    And whatever goods are contained in premises hereinafter described in said premises, are situated in Kelly’s Island, county of Erie, and state of Ohio, and knoAvn as the property of William Becker. For a true inventory and appraisal of the within described property, see Schedule “A,” case No. 7122, Robert Hamilton v. William Becker, which is made part of this bond. Which said property has been duly appraised at the sum of $1,585. And, whereas, the said sheriff has delivered the said property to the said William Becker. Now if the said property so attached, or its appraised value in money, shall be forthcoming to answer the judgment of the court in said action, then, this obligation to be void; otherwise to remain in full force and virtue in law.
    W. W. Woodward,
    John Diest.
    Signed in my presence and approved by me this 19th day of January, A. D. 1895.
    A. A. Magill, Sheriff.”
    In that action, at the November term of the court in 1895, the plaintiff recovered a judgment against Becker for the amount of the debt, and obtained an order against him and the sureties on the undertaking, for the redelivery of the attached property to the sheriff for sale. This order required the parties against whom it was directed to make the redelivery within three days after its service upon them, and in default thereof to “forthwith pay to the sheriff the amount of the plaintiffs judgment with interest, and costs.” The parties having failed to comply with the order, the plaintiff instituted a proceeding in contempt against them, and obtained a rule requiring them, on a day therein named, to show cause “why they and each of them should not be punished as for contempt for disobedience and failure to comply with said order.” This contempt proceeding came to a hearing at the April term, 1899, and, at the conclusion of the hearing, the court found the parties guilty of the contempt charged, and made and rendered against them the following judgment and order : “It is therefore ordered, considered and adjudged that the said plaintiff recover from said defendants, William Becker, W. W. Woodward and John Deist, the sum of $867.92, with interest at 5 per cent, on &247.06 from the 4th day of November, 1895, and interest on $620.86 from the 4th day of November, 1895, being the amount of said judgment and interest and the costs of this action, together with all increase costs, to which defendants except. It “is further ordered and adjudged that the said defendants pay or cause to be paid said judgment against said William Becker, with interest thereon, as aforesaid, and the costs of this action, to the clerk of this court, within twenty-four hours from and after the date of this order, and execution is awarded therefor, and that in default thereof they and each one of them be committed to and imprisoned in the county jail of Erie county until said order is complied with, and that a warrant issue from the clerk of this court to the . sheriff of Erie county, Ohio, for said committment and imprisonment.”
    The parties against whom the foregoing judgment and order were entered, in due time filed their motion for a new trial, which was overruled, and they thereupon perfected a bill of exceptions, from which it appears, in addition to the facts already stated, that the amount of the undertaking in question could be made on execution against Woodward, who is solvent; that Becker, in 1898, made an assignment for the benefit of his creditors to George E. Reiter, who accepted the trust and took possession of all the property then within the control of Becker, and demanded of each of the sureties on the undertaking, all property of Becker’s in their possession; that none of the attached property had been lost or destroyed, but a portion of it, being perishable, was sold and has passed out of existence; that the parties were unable to comply with the order of the court requiring the delivery of the property to the sheriff; and, that they had no “intention to commit contempt of court, and were under the advice of counsel that if they were liable to any person they would be liable to no one but the assignee of William Becker.” The circuit court on error prosecuted there, reversed the judgment and order of the common pleas, and the object of the proceeding in error here is to obtain the reversal of the judgment of the circuit court, and an affirmance of that of the common pleas.
    
      King cG Guerin, for plaintiff in error.
    
      II. L. Peake, and George E. Reiter, for defendants in error.
   Williams, J.

The principal question which the record brings before us, is whether the judgment and order of the court of common pleas here under review are incompatible with section 15 of the Bill of Rights. The circuit court held them to be so, and on that ground, reversed them. That section of the constitution provides that: “No person, shall be imprisoned for debt in any civil action, on mesne or final process, unless in case of fraud.” The question here is not embarrassed by any feature of fraud, for it is disclaimed there was any fraud on the part of Becker in obtaining the delivery of the attached property to him by the sheriff, or any on the part of either of the defendants in error in incurring the obligation upon which the judgment and order in question were founded. The property was delivered by the sheriff in pursuance of a provision of the statute, upon the acceptance by him of the proper undertaking with sufficient sureties, as therein provided. No bad faith or fraud is imputed to any of the parties in the transaction. Nor, is it disputed that the judgment and order were rendered in a civil action. Imprisonment thereunder would be imprisonment on process in such action. The constitutional provision is not to be construed as confined to arrests upon writs. White v. Gates, 42 Ohio St., 109-110. The point in controversy is whether imprisonment under the order would be imprisonment for debt, within the purview of the constitutional provision referred to. The proceeding in contempt was founded on the order of the court entered as part of the judgment recovered by the Bank in its action against Becker on his two notes; and the primary object of that order was to procure the redelivery of the property attached in' that action, to the sheriff' for sale for the satisfaction of the Bank’s judgment. Notwithstanding the sureties on the undertaking given by Becker for the redelivery of the property were not parties to that action, the order ran against them as well as Becker. It directed that they all should “within three days from the service of the order redeliver to the sheriff all of said property, or in default thereof that they should “forthwith pay to the sheriff, the judgment recovered by the Bank against Becker, with interest and costs.” Upon the hearing on the rule issued in the contempt proceeding for failure to comply with that order, the court, presumably, was satisfied, as indicated in the bill of excejjtions, that the parties were unable to comply with that part of the order which required the redelivery of the property, for it simply rendered a general judgment against all of the parties for the amount of the judgment which the Bank had theretofore recovered against Becker, and entered an order against all of them, that if they did not pay the judgment within twenty-four hours, they should “be committed to, and imprisoned in, the county jail;” until they should pay it. It is this judgment and order which the circuit court reversed.

It seems indisputable that the money due the Bank on its judgment against Becker, is a debt. Payment of that debt was the only means, under the order complained of, by which the defendants in error could escape imprisonment in the county jail. The end sought by the order, and its sole purpose, was to coerce payment by imprisonment. The first judgment against Becker acquired no additional force by the rendition of the second one against him for the same debt, nor any additional means or remedy for the enforcement of its collection, except by his imprisonment for its non-payment; and the order against his sureties had no other object than to enforce performance by them of their obligation for the principal, by subjecting them to imprisonment for the principal’s default in making payment of the judgment against him. The observation is pertinent here that the obligation of the sureties on the undertaking is not to redeliver the attached property to the sheriff, nor that Becker should redeliver it. By its terms the undertaking binds the obligors for the payment of a sum of money to the sheriff, and the forthcoming of the property, according to its condition, to answer the judgment that should be recovered in the action, is merely a mode provided for discharging the money obligation. It is clear the sureties did not contract to undergo incarceration in prison for any default of the principal in the performance of the condition of the undertaking, and that their liability upon it is a debt arising upon contract. The constitutions of most of the states contain a prohibition against imprisonment for debt, substantially like that in ours, and the authorities hold with general unanimity that the word debt, within the constitutional inhibition, includes not only debts of record, judgments, and specialties, but generally all obligations arising upon contract, express or implied; and some of the courts give the word a still larger meaning.

The real contention of counsel for the plaintiff in error is, that the judgment and order under consideration are justified by section 5556, of the Revised Statutes, and other statutory provisions therein referred to. That section provides that “The court may compel the delivery to the sheriff for sale of any of the attached property for which an undertaking has been given, and may proceed summarily on such undertaking to enforce the delivery of the property or the payment of the money due upon the undertaking by rules and attachment as in cases of contempt.” And it is provided by sections 5640, and 5646, which relate to proceedings in contempt, that disobedience of, or resistance to, an order or judgment of a court may'be punished as for a contempt; and that when the contempt consists in the omission to do an act which is yet in the power of the accused to perform, he may be imprisoned until he performs it. It is unnecessary in this case to hold these statutory provisions, or any of them, unconstitutional; but to avoid that result, they should be so construed, and restrained in their operation, as not to bring them in conflict with the inhibition of the constitution; and their provisions, so far as they interfere with personal liberty, must receive a strict construction. Spice v. Steinruck, 14 Ohio St., 213. White v. Gates. 42 Ohio St., 109, 112. It is not in every case of contempt that imprisonment may be imposed as a punishment. There are many orders and commands of courts, other than those for the payment of a debt, or the enforcement of a judgment upon a money obligation, to which the statutes may have appropriate application. Of this class, it has been held, are orders to deliver property in the possession of a party, or turn over moneys in his hands, to a receiver. Re Milburn, 59 Wis., 24-31; orders not to transfer or dispose of property pending a litig'ation; Re Perry, 30 Wis., 269; and others of a like nature. But the order complained of in this case was not of that character. It was not to deliver any of the attached property then in the possession of the defendants; they had none in their possession. Nor was it to turn over any money in their hands belonging to the plaintiff; they were not the custodians of any fund. It was strictly an order for the payment of a debt, namely, for the payment of a specified amount of money in satisfaction of a judgment rendered against them, and. in default of such payment, to stand committed. This order was therefore erroneous, and was properly reversed. And, we think the judgment rendered against the sureties was also. As has already been noticed, they were not parties to the original action against Becker, nor before the court, either by process or appearance, when the order was entered in that action requiring them to redeliver the attached property to the sheriff or pay the judgment then rendered in favor of the Bank against Becker. The court was therefore without jurisdiction to make the order that was then entered against them. That order was the foundation of the subsequent proceeding for contempt. In that proceeding they were only notified to show cause why they had not redelivered the property in compliance with the previous order. No suit was brought against them on the undertaking, nor opportunity given them to plead or make defense to any claim of liability thereon, or be heard according to the usual course of legal proceedings. It can scarcely be claimed that this was due process of law.

Judgment affirmed.  