Chapter 898

898.29   Effect of assignment.

898.30   Defense in actions by assignee.

898.31   When suit against sheriff stayed.

898.01 898.01 Discharge of persons confined for tort. Every person confined in jail on an execution issued on a judgment recovered in an action founded on a tort shall be discharged therefrom upon the conditions hereinafter specified.

898.02 898.02 Notice to plaintiff. The person shall cause notice to be given to the plaintiff in the action, the plaintiff’s agent or attorney, in writing, that at a time and place specified in the notice the person will apply to the circuit judge or circuit court commissioner of the county in which the person is so confined for the purpose of obtaining a discharge from imprisonment.

898.02 History History: 1977 c. 449; 2001 a. 61.

898.03 898.03 Notice, how served. Such notice shall be served by delivering a copy thereof to the plaintiff, the plaintiff’s agent or attorney 24 hours before the time for the hearing of such application, if the plaintiff lives within 20 miles of the place designated for the hearing; and for every additional 20 miles or part thereof that the plaintiff resides from such place 24 hours shall be added to the time of such service.

898.03 History History: 1993 a. 486.

898.04 898.04 Prisoner to be examined. At the time and place specified in the notice the person shall be taken, under the custody of the jailer, the sheriff or the sheriff’s deputy, before the circuit judge or circuit court commissioner, who shall examine the prisoner on oath concerning his or her estate and effects and the disposal thereof and the prisoner’s ability to pay the judgment for which he or she is committed; and who shall also hear any other legal and pertinent evidence that may be produced by the debtor or the creditor.

898.04 History History: 1977 c. 449; 2001 a. 61.

898.05 898.05 Interrogatories. The plaintiff in the action may, upon such examination, propose to the prisoner any interrogatories pertinent to the inquiry and they shall, if required by the creditor, be proposed and answered in writing and the answers shall be signed and sworn to by the prisoner; and the plaintiff in the action may have a copy of the interrogatories and answers certified by the officer before whom such examination is had, upon paying therefor the legal fees.

898.06 898.06 Oath on discharge. If upon such examination such officer shall be satisfied that the prisoner is entitled to his or her discharge the officer shall administer to the prisoner the following oath:

I, .... do solemnly swear that I have not any estate, real or personal, to the amount of $20, except such as is by law exempt from being taken on execution, and that I have not any other estate, nor conveyed or concealed or in any way disposed of any portion of my estate, real or personal, with design to secure the same to my use or to defraud my creditors. So help me God.

898.06 History History: 1993 a. 486.

898.07 898.07 Certificate to sheriff.

898.07(1) (1) After administering the oath the officer before whom such examination shall be held shall make a certificate under the officer’s hand as follows:

To the sheriff or jailer of the county of .... : I do hereby certify that .... , confined in your jail upon an execution at the suit of ...., is entitled to be discharged from imprisonment, if he or she be imprisoned for no other cause.

898.07(2) (2) The sheriff, or jailer, upon receiving such certificate, shall forthwith discharge the prisoner, if the prisoner be imprisoned for no other cause.

898.07 History History: 1993 a. 486.

898.08 898.08 Other applications for discharge. If upon such examination aforesaid the prisoner be not discharged the prisoner shall be entitled to apply for his or her discharge at the end of every succeeding 10 days, in the same manner as above provided, and the same proceeding shall thereupon be had.

898.08 History History: 1993 a. 486.

898.09 898.09 Effect of discharge. The prisoner, after being so discharged, shall be forever exempt from arrest or imprisonment for the same debt unless the prisoner shall be convicted for having willfully sworn falsely upon his or her examination aforesaid or in taking the oath before prescribed.

898.09 History History: 1993 a. 486.

898.10 898.10 Judgment to remain in force. The judgment against any prisoner who is discharged as aforesaid shall remain in full force against any estate which may then or at any time afterwards belong to the prisoner; and the plaintiff in the action may take out a new execution against the goods and estate of the prisoner in like manner as if the prisoner had never been committed on the execution.

898.10 History History: 1993 a. 486.

898.11 898.11 Inability to pay fees. If the prisoner is unable to pay in whole or in part the fees of the circuit court in the proceedings, the proceedings shall continue without charge to the prisoner.

898.11 History History: 1977 c. 449; 2001 a. 61.

898.12 898.12 Payment and discharge. If the debtor shall satisfy the execution the debtor shall not be entitled to his or her discharge until the debtor has paid all the charges for his or her support in prison, in addition to the sum due on the execution, and the costs and charges thereon.

898.12 History History: 1993 a. 486.

898.13 898.13 Discharge by plaintiff. The plaintiff in the action may, at any time, order the prisoner to be discharged, and the prisoner shall not thereafter be liable to imprisonment for the same cause.

898.13 History History: 1993 a. 486.

898.15 898.15 Jail liberties. A space of ground in a square, the center of each of whose sides shall be one mile distant from the jail, is declared as the liberties of the jail of each county of the state. The sheriff of each county, where such liberties have not been heretofore so designated, shall, at the expense of the county, designate by visible and permanent marks the extent and limits of such liberties.

898.16 898.16 When prisoner to have. Every person who shall be in the custody of the sheriff of any county by virtue of an order of arrest, or writ of ne exeat or surrender by the person’s bail upon an order of arrest, execution except when issued in a civil action for the recovery of a forfeiture or penalty, or attachment in proceedings for contempts, not criminal, issued for nonpayment of costs or of any sum of money ordered to be paid in a civil action shall be entitled to be admitted to such jail liberties upon executing the bond prescribed in s. 898.17.

898.16 History History: 1993 a. 486.

898.17 898.17 Bond to be given. Such bond shall be executed by the prisoner and one or more sureties, to be approved by the sheriff, in a sum not less than double the amount of the sum in which the sheriff was required to hold the defendant to bail, or double the amount directed to be collected by the execution, or double the amount of the costs or sum of money ordered to be paid, as the case may be, and shall be conditioned that such defendant shall remain a true and faithful prisoner and shall not escape or go without the limits of such jail liberties until discharged by due course of law. Every such bond shall be held for the indemnity of the sheriff taking the same and of the party at whose suit or for whose benefit such prisoner is confined.

898.18 898.18 Commitment if surety not good. If a sheriff who shall have taken any such bond shall discover that any surety to such bond is insufficient, the sheriff may commit the prisoner, who executed the same, to close confinement in such jail until other good and sufficient sureties shall be substituted.

898.18 History History: 1993 a. 486.

898.19 898.19 Surrender of principal. The sureties in any such bond may surrender their principal at any time before judgment shall be rendered against them thereon by taking such principal and delivering the principal to the keeper of the jail, when upon the written requirement of such sureties the keeper of the jail shall endorse upon such bond an acknowledgment of the surrender of the principal and shall also, if required, give such sureties a certificate acknowledging such surrender; but such surrender shall not exonerate such sureties from any liability incurred by them previous to such surrender.

898.19 History History: 1993 a. 486.

898.20 898.20 What is an escape. The going at large of any prisoner who shall have executed such bond or of any prisoner who would be entitled to the liberties of any jail, upon executing such bond, within the limits of the liberties of the jail of the county in which the prisoner shall be in custody, shall not be deemed an escape of such prisoner; but in case any such prisoner shall go at large without the jail liberties of such county, without the assent of the party at whose suit such prisoner shall be in custody, the same shall be deemed an escape and forfeiture of the bond so executed; and the sheriff in whose custody such prisoner shall have been shall have the same authority to pursue and retake such prisoner as if such escape had been made from the jail.

898.20 History History: 1993 a. 486.

898.21 898.21 Escape of prisoners. In case of the escape of any prisoner by reason of the insufficiency of the jail, whereby the sheriff or any other person shall be made liable to any party at whose suit such prisoner was committed or to whose use any forfeiture was adjudged against the prisoner, the county shall reimburse and pay all sums of money recovered of the sheriff or such other person by such party by reason of such escape.

898.21 History History: 1993 a. 486.

898.22 898.22 Voluntary return. In every suit brought by a sheriff on such bond the defendants may plead a voluntary return of the prisoner to the jail from which the prisoner escaped, or the liberties thereof, or the recapture of such prisoner by the sheriff from whose custody the prisoner escaped before the commencement of such suit, and may give evidence thereof in mitigation of the damages or judgment claimed, but upon such answer of a voluntary return judgment shall be rendered against the defendant in the action for $25 for each day or part of day such defendant was outside of such liberties, together with the costs of the action; and such defendants shall be entitled to make such or any other defense to such suit which might be made by such sheriff to an action against the sheriff for such escape.

898.22 History History: 1993 a. 486.

898.23 898.23 Effect of judgment against sheriff. But if an action shall have been brought against such sheriff for such escape and due notice thereof shall have been given to the prisoner and the prisoner’s sureties, who executed such bond, the judgment against such sheriff shall be conclusive evidence of the sheriff’s right to recover against such prisoner and the prisoner’s sureties as to all matters which were or might have been controverted in the action against the sheriff.

898.23 History History: 1993 a. 486.

898.24 898.24 Suit on bond. In every suit brought by a sheriff on the bond if it appears to the court that judgment has been rendered against the sheriff for the escape of the prisoner and that due notice of the pendency of the action against the sheriff was given to the prisoner and his or her sureties, to enable them to defend the action, the court shall render judgment in the suit upon the bond after the summons is served, upon the complaint being filed and 20 days’ notice of the application for the judgment has been given to the defendants in the action.

898.24 History History: 1977 c. 449.

898.25 898.25 Defense by sureties. If it shall appear, on the hearing of such motion, that the defendants have any meritorious cause of defense, which was not controverted in the action against the sheriff and which by law could not have been so controverted, the court shall enter judgment as provided in s. 898.24 and suspend proceedings thereon until a trial in such action be had; but such judgment shall remain as a security for the sheriff. If such defense be established the court shall vacate such judgment and render judgment as in other cases.

898.26 898.26 Evidence; costs. In every action brought by a sheriff on such bond the recovery of a judgment against the sheriff for the escape of the prisoner shall be evidence of the damages sustained by the sheriff in the same manner as if such judgment had been collected; and such sheriff shall be entitled to recover the costs and the sheriff’s reasonable expenses in defending the suit against the sheriff as part of the sheriff’s damages.

898.26 History History: 1993 a. 486.

898.27 898.27 Assignment of bond. If any bond given under s. 898.17 is forfeited, the party at whose suit the person executing the bond shall have been confined or, in case of his or her death, that party’s personal representative, shall be entitled to an assignment of the bond, which shall be made by the sheriff taking the same or, in case of a vacancy in the sheriff’s office, by the sheriff’s undersheriff.

898.27 History History: 1993 a. 486; 2001 a. 102.

898.28 898.28 Suit on bond; damages. The party to whom such assignment shall have been made may maintain an action on such bond, as assignee of the sheriff taking the same, in the same cases in which such action might be maintained by such sheriff, and shall recover damages for breaches of the condition of such bond as follows:

898.28(1) (1) If the prisoner escaping was confined by virtue of an execution or by virtue of an attachment for nonpayment of costs or of any sum of money ordered to be paid by a court or judge the measure of the plaintiff’s damages shall be the amount directed to be levied by such execution or attachment, with interest thereon to the time of such recovery;

898.28(2) (2) If the prisoner was confined by virtue of an order of arrest or writ of ne exeat, or upon a surrender by the prisoner’s bail upon an order of arrest, made before or after judgment rendered against the prisoner, the plaintiff shall recover only the actual damages sustained by the plaintiff.

898.28 History History: 1993 a. 486.

898.29 898.29 Effect of assignment. The acceptance of an assignment of any such bond shall be a bar to any action by or on behalf of the party receiving such assignment against the sheriff or other officer making the same for any escape of the prisoner executing such bond, amounting to a breach thereof.

898.30 898.30 Defense in actions by assignee. In every action brought by the assignee of such bond the defendants shall be entitled to plead a voluntary return of the prisoner to the liberties of the jail before the commencement of such action, in mitigation thereof, as provided in s. 898.22; and to make any defense which they would be entitled to make if such action had been brought in the name and for the benefit of the sheriff to whom such bond was executed.

898.31 898.31 When suit against sheriff stayed. In case the party at whose suit any person shall have been confined to the liberties of a jail shall refuse or neglect to take an assignment of the bond executed by such person, as hereinbefore provided, and shall prosecute any sheriff for the escape of such person the court in which such action shall be pending shall, by order, stay all the proceedings upon the judgment against such sheriff until the sheriff shall have had a reasonable time to prosecute the bond taken by the sheriff and to collect the amount of any judgment the sheriff may recover thereon. But this section shall not authorize such stay of proceedings in any action where the judgment shall have been recovered against any sheriff for any escape committed with the assent, aid or assistance of such sheriff.

898.31 History History: 1993 a. 486.