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.1 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.2
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 ease 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.3 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.
ENGLISH, P. J„ concurs.
A judgment in the same amount was also entered against James F. Maloney, but there was no finding as to him that malice was the gist of the action. Therefore, throughout this opinion “defendant” will refer only to Hilda Maloney.
Since its amendment in 1935, this section has been construed in Brandtjen & Kluge, Inc. v. Forgue, 299 Ill App 585, 20 NE2d 616. The court stated at page 590:
Defendants say that an affidavit and demand upon the defendants to deliver up their estate for the benefit of the creditor are necessary before a capias will issue. This is not necessary where the judgment is in tort based on malice. (Citing cases.)
To the same effect are: Addante v. Pompilio, 317 Ill App 150, 45 NE2d 521; In re Petition of White, 302 Ill App 69, 23 NE2d 401; Pappas v. Reabus, 299 Ill App 499, 20 NE2d 327. The court in Pappas v. Reabus, supra, stated at page 503 that:
Whether the legislature should have gone farther and abolished body executions in all tort actions, (referring to the 1935 legislative amendment to section 5) and whether the present statute is “out of tune with the American spirit and has no place in American jurisprudence,” . . . obviously is in the province of the legislature and not of the courts.
The purpose of the hearing (first required in 1955) is to provide a ready means to a debtor to be released from jail if the body execution was improperly issued. Prior to 1955 the statute did not require such a hearing and merely provided that: “When a debtor shall be arrested by virtue of an execution against his body, he shall be conveyed to the county jail . . . and kept in safe custody until he shall satisfy the execution or be discharged according to law [the maximum imprisonment was 6 months].” Ill Rev Stats 1953, c 77, § 68.