dissenting:
Plaintiffs filed no pleading of any kind in response to defendant’s petition in tbe nature of a writ of audita querela. Tbe trial court, nevertheless, proceeded witb a bearing on tbe apparent assumption that tbe sufficiency of tbe petition bad been put in issue as though by motion to dismiss. In any event, tbe facts set forth in tbe petition were not contravened, in tbe trial court or here, by pleading or otherwise, and must, therefore, be considered as true.
Tbe petition alleged that for some 17 months after entry of judgment for possession defendant bad continued in tbe premises under a post-judgment agreement witb plaintiffs calling for tbe payment of $400, or more, per month “on account of tbe original contract of purchase”; that all payments thus agreed upon bad been made when, on May 5, 1962, a writ of restitution was served to enforce tbe original judgment for possession entered in 1960. Defendant’s petition was filed promptly thereafter.
It would be difficult to conceive of a more appropriate application of audita querela than that presented by tbis petition, which is tbe Practice Act equivalent of “a common law writ to afford relief against a judgment or execution because of some defense or discharge arising subsequent to tbe rendition of tbe judgment.” Di Paola v. Seppala, 336 Ill App 344, 349, 83 NE2d 889. Under remarkably parallel circumstances this court stated in Bolman v. Hardy, 345 Ill App 609, 104 NE2d 325:
The allegations of the petition (in the nature of a writ of audita querela) in this proceeding must be taken as true. By reason of the occupancy and payment of weekly rental after the order of February 15, 1951, (judgment for possession) the law created a new tenancy. (Sebastian v. Hill, 51 Ill App 272; Sprengel v. Schroeder, 203 Ill App 213); plaintiff recognized defendant as his tenant at a time when he was entitled immediately to evict him from the premises, and by accepting rent for a considerable period thereafter he lost the right to enforce the judgment of restitution previously entered in his favor. Accordingly, the court should have allowed defendant’s petition. The order of May 1, 1951 is therefore reversed, and the cause is remanded with instructions to sustain the petition, to quash the writ of restitution, and to enjoin plaintiff from procuring the issuance of another writ in this proceeding.
An order of the kind directed by this court in Bolman was the only one proper in the case at bar. When, in its order of May 29, 1962, the court recognized, as it should have, the post-judgment agreement between the parties, it had no alternative but to quash the writ of restitution, because that writ had been based upon the judgment which, in turn, had been based upon the superseded purchase agreement. Instead, however, the writ was merely stayed for awhile and used as a weapon in the gratuitous program embarked upon by the court to enforce the payment provisions of the new agreement. I say gratuitous because there was not then (nor is there now) any pleading whatsoever seeking a money judgment under that agreement. It seems to me that the trial court and the majority here have thus completely lost track of, or concern for, the sole issue presented by the only pleading in the case.
The Illinois courts have repeatedly held that affirmative relief cannot properly be granted without “a motion, petition or pleading of some kind asking for it.” Zelko for use of Oostema v. Homewood Sav. & Loan Ass’n, 20 Ill App2d 481, 156 NE2d 233; Trustees of Schools of Town One v. Chambers, 240 Ill App 295, 306. “It is fundamental that a judgment order must be supported by allegations in the complaint as well as by the evidence.” Abbate Bros. Inc. v. City of Chicago, 11 Ill2d 337, 346, 142 NE2d 691; Lewis v. Lewis, 316 Ill 447, 450, 147 NE 411. “This court has said many times, pleadings without proof are of no avail on final hearing and, by the same token, proof without pleadings is useless.” Neitzke v. Neitzke, 15 Ill App2d 473, 476, 146 NE2d 708; Consoer, Townsend & Associates v. Addis, 37 Ill App2d 105, 110, 185 NE2d 97.
Compounding the error in the order of May 29, 1962 is the fact, clearly shown by the record, that the direction to pay $800 came at a time when that amount was not yet due. The uncontroverted petition filed on May 14, 1962 stated that all payments were current at that time. By the specific terms of the May 29 order defendant was ordered to make two $400 payments “in advance.” This portion of the order amounted to a decree for specific performance of the new agreement, a remedy rarely to be decreed and only upon the making of a very strong showing by affidavit or evidence of unusual circumstances justifying such drastic relief. (Ambassador Foods Corp. v. Montgomery Ward & Co., Inc., 43 Ill App2d 100, 192 NE2d 572.) Here, of course, there was no showing at all.
By ordering the payments “in advance” the court thus recognized not only the existence of the new agreement, but also that there had been no default thereunder. Despite this fact, the court, unaccountably, ordered further that the defendant vacate the premises by June 30. The order to vacate was not made dependent upon failure to pay the $800, but in any event, and even though it might have resulted in eviction without any default in payment whatsoever. And the eviction so ordered was apparently to be enforced through execution of the writ of restitution under the old agreement, while payments were to be made under the new one. The result of the May 29 order, as I read it, was that the petitioner, who was clearly entitled to have the writ of restitution quashed, was, instead, ordered to vacate the premises and pay $800 under the new agreement by the terms of which he was then current in his payments. Yet this palpably erroneous result embodied in the order is described by the majority as treatment “in a most lenient and sympathetic manner . . . when he was granted his request for additional time in which to vacate the premises in return for his promise to pay $800.” I find nothing in the record indicating that defendant requested “additional time” or that a 30-day stay of the writ was given to him in return for a promise to pay $800. We do not have a transcript of the proceedings on that date, and the order makes no such findings.
Further in this regard, both the trial court and the majority here have erroneously referred to the $400 payments as “rent.” This characterization also finds no support in the record * and may explain, in part, why they seemingly overlook the additional equity attaching to the position of a contract purchaser as compared with that of a tenant. That the majority misunderstand the nature of defendant’s position and the character of the relief sought by his petition is demonstrated, I believe, by their describing the order of May 29 as having granted “the relief requested by defendant.” And this, even though the patent purpose for the filing of defendant’s petition was to obtain relief against the writ of restitution, and even though the same order which directed defendant to pay the $800 also ordered him to vacate the premises — the very premises toward the purchase of which the payments were to be applied.
The dignity of the court can neither be achieved nor preserved by punishing for civil contempt a failure to comply with an erroneous order. Actually, the dignity of the court is only incidentally involved in a case of civil contempt where, as here, the order directs the doing of something (e. g., the payment of $800) for the benefit of the other party to the case.* If, as seems obvious to me, tbe party intended as the beneficiary of tbe order was not entitled to the relief directed, then failure of compliance would injure nobody. This is an equity proceeding (Ellman v. De Ruiter, 412 Ill 285, 106 NE2d 350), and it is inequitable for the court to punish only for its own injured dignity when it had no authority to enter the order in the first place. The character of civil contempt being at once remedial or coercive as well as punitive, if the remedy ordered is lacking in authority, then, in all good conscience, the punitive feature must also fall. It is only in matters of criminal contempt that the court may properly take punitive action against conduct directed against the authority and dignity of the court. (People v. Gholson, 412 Ill 294, 298, 106 NE2d 333.) And there is no claim that criminal contempt is involved in the case at bar.
In People v. White, 8 Ill App2d 428, 131 NE2d 803, a civil contempt case, the point was made by the defendant that when the court directs the doing of an act for the benefit of the opposing party, it must be obeyed under pain of contempt, even though the court might be in error. The argument, however, met with unsympathetic reception in this court which reversed the contempt conviction upon finding that the original order had erroneously directed the act in question. For a similar result see also People v. Mulliken, 41 Ill App2d 282, 190 NE2d 502.
Even if there had been a default of $800 at the time of the May 29 order; and even if there had been a proper pleading seeking judgment therefor; and even if judgment had then been entered against defendant for $800, his failure to pay it, without more, would not have amounted to contempt of court. The court found that defendant owed plaintiffs $800 (or would by June 30), but such an order to pay could only have been predicated upon a debtor-creditor relationship. There is not even any suspicion in the record that a trust relationship of any kind then existed between the parties or was about to come into being. The basis for the order was a simple debt — two monthly payments under a real estate purchase contract. In my opinion the commitment order does, therefore, amount to imprisonment for debt. The court was without authority to elevate the contract debt to any higher plane of obligation, with a jail penalty for default, without a great deal more of a showing than is contained in this record.
One of the key essentials to such a showing is that the debtor has the money to pay, or had the money and wrongfully disposed of it. I quote from Tudor v. Firebaugh, 364 Ill 283, 287, 4 NE2d 393, in which the Supreme Court said:
The power of a court of equity to punish for contempt by imprisonment upon the refusal of a trustee to pay over money actually received and wrongfully withheld is well established. (People v. LaMothe, 331 Ill 351; Chew’s Appeal, 44 Pa 247; In re Meggett, 105 Wis 291, 81 NW 419.) It is no defense in such case that the fund has been devoted to other purposes. (People v. Zimmer, 238 Ill 607; Rudd v. Rudd, 184 Ky 400, 214 SW 791; Jastram v. McAuslan, 29 RI 390; 71 A 454; Wise v. Chaney, 67 Iowa 73, 24 NW 599.) However, section 12 of article 2 of the constitution provides that “no person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors, in such manner as shall be prescribed by law, or in cases where there is strong presumption of fraud.” In the enforcement of this constitutional provision every doubt should be resolved in favor of the liberty of the citizen. No one should be imprisoned for a failure to pay money unless the evidence clearly shows that the party charged has the money within his power to pay, or that he had the money and wrongfully disposed of it. Courts may imprison for willful defiance, but they will not imprison for a failure to comply with a decree where the disobedience is not willful. (Citing cases.)
More recently this court affirmed those principles in Shatz v. Paul, 7 Ill App2d 223, 240, 129 NE2d 348, where we said:
The courts in modern times have shown a tendency to modify the rigors of the law relating to imprisonment. It has been held that where a trustee or receiver refuses to pay over money actually received and wrongfully withheld, a court of equity has no power to imprison such receiver or trustee unless it is clearly shown by the evidence that he has the money to pay or had it and wrongfully disposed of it.
See also Meaden v. W. J. Anderson Corp., 301 Ill App 390, 396, 23 NE2d 74.
In the case at bar there is no evidence or finding that defendant had the money to pay the $800 ordered, or that he had had the money and disposed of it wrongfully to avoid paying. Quite the contrary is true. The only evidence was defendant’s own testimony that he did not have the money. The majority say that defendant had the burden of introducing more explicit evidence to this effect before it could be considered that he had established his inability to pay. I don’t agree, and I believe that the cases cited in the majority opinion, Harrigan v. Stone, 237 Ill App 314, and People v. Zimmer, 238 Ill 607, 87 NE 845, are not apropos. Those two cases deal, respectively, with the administrator of an estate who refused to surrender specific property which he had in his possession as administrator, and the receiver of a dissolved partnership who refused to account for assets of the partnership officially in his possession as receiver. Both defendants were acting as officers of the court, and each refused to pay, not a mere money judgment, but specific funds or assets entrusted by court order to their possession. Because of their relation to the court and their position as fiduciaries, they were held to a much higher degree of accountability than that of a mere judgment debtor.
On the other hand, there are a great many cases in which contempt orders have been reversed because it did not appear that the defendant had the money or had wrongfully disposed of it. In Mueller v. Van Driessche, 236 Ill App 420, 424, after an execution was levied, the judgment debtor, brought into court in citation proceedings, agreed to an order that she pay a certain amount per month, and on her failure to pay this amount, she was held in contempt for disobeying the order. As in the case at bar, the only evidence was the testimony of defendant to the effect that she had no money. In reversing, this court quoted from Blake v. People, 80 Ill 11, 14, where the Supreme Court said: “. . . a party may not be imprisoned except in cases where it shall appear he has the pecuniary ability to enable him to comply with the decree, and his disobedience is wilful.”
In People v. Cohen, 163 Ill App 115, 120, an order directing the defendant to pay $30 was held invalid, and a contempt order for failure to pay was reversed by this court, because “it does not appear plaintiff in error had the $30 in her possession or under her control at the time the order was entered.” The same result was reached in a case involving failure to pay alimony. Mueller v. Mueller, 202 Ill App 116.
In the case at bar, the trial court, curiously enough, appeared to be convinced of defendant’s inability to pay, because, after discussing the circumstantial evidence of damage to the premises, the court made this statement at the time:
People have gone to jail on this type of evidence, even less evidence than this, and this man is going to jail unless he offers some plan for clearing himself of this, and the only thing he can do is restore the property to the condition to which it was prior to the time of the damage, and that will take a substantial amount of money, and if he can’t raise $400, if he can’t raise $400 to pay two months’ rent, he isn’t going to be able to raise enough money; unless he can assure me he can take care of these damages on the basis of this, I’ll send him to jail and not impose a fine. (Emphasis supplied.)
This comment by the trial judge also indicates that he appeared to be interested principally, if not entirely, in punishing defendant for the damage done to the premises. The sole subject-matter of the “double or nothing” lie detector test was the damage to the premises, and, in directing the taking of the test, the court said further:
... if it indicates that you have been telling the truth, and that you had no part in this at all, not necessarily — it isn’t a question of whether you did it or not, but that it wasn’t done with your knowledge or with your consent or under your direction, that you knew absolutely nothing about it — if the lie detector test bears that out, I think I would be justified in saying that I was mistaken, and will not hold you in contempt.
However, if the lie detector shows that you are not telling the truth about it, then you will serve 60 days in the County Jail.
I believe that the polygraph is a remarkable instrument which has many useful purposes, but, in my opinion, the manner in which it was employed in this case was improper. Lie-detector results have not yet reached the point of scientific certainty which would render them admissible in evidence. A fortiori, then, they may not be used by the court to justify abdicating its function of decision, especially when a man’s liberty is involved.
Now, as a result of this court’s decision, defendant will be faced with the prospect of spending 60 days in jail for failure to pay money which the record shows he did not have.* And we are not warranted in assuming that he will be able to pay the money to effectuate his release sooner. The 60-day maximum period was obviously fixed by the trial court in relation to the magnitude of the damage done to the premises. That phase of the contempt order has properly been reversed by our decision, but the 60-day commitment provision still stands. This, to me, is unconscionable.**
I would reverse the order in its entirety.
The petition of defendant, and the testimony of plaintiff Rychlik both describe the agreement between the parties as a real estate purchase contract. The order of May 29 does not use the word “rent,” but it is found in the commitment order.
“Contempts have been classified as criminal contempts and civil contempts. The former includes acts in disrespect of the court or its process and those tending to bring the court into disrepute or obstruct the administration of justice. Civil contempts have been characterized as quasi-contempts, and consist in failing to do something which the contemner is ordered by the court to do for the benefit or advantage of another party to the proceeding before the court. In such a ease the process is civil. (Citing eases.) In this class of cases, while the authority of the court may be said to be incidentally vindicated, its power is called into exercise for the benefit of a private litigant and not in the public interest, merely. If imprisonment is ordered, it is not as a punishment but to the end that the other party to the suit may obtain a remedy for the advancement of his own private interests and rights which he could not otherwise procure.” Wilson v. Prochnow, 359 Ill 148, 151, 194 NE 246.
Unless the sheriff lets him out sooner. The mittimus specifically ordered by the court was “for a period of sixty (60) days for a period of thirty (30) days,” etc.
Bearing interestingly on this point is the following colloquy between plaintiffs’ attorney and the trial judge, after the latter had announced his “double or nothing” lie-test ruling as to the property damage:
Mr. Downing: In so far as this $800 which was ordered by this court to be paid, that has not been paid, and in our opinion, it is still contemptuous of this court’s order.
The Court: But my 30 days would be reduced to some extent, if it’s merely a question of the money.