In re Vinich

The prisoner is restrained of his liberty on an order of arrest issued in a civil action by a justice of the peace in Santa Cruz County. It is conceded that the action is for the recovery of moneys claimed to be due upon open account for supplies furnished to defendant while engaged in the restaurant business in Santa Cruz.

The constitution provides: “No person shall be im *71 prisoned for debt in any civil action on mesne or final process, unless in cases of fraud.” (Art. 1, sec. 15.)

The only provisions of the statute pertaining to arrest in civil actions in justices’ courts, or applicable in such cases, are those found in sections 861 to 865 of the Code of Civil Procedure. Under these, before an order of arrest can be made by the justice in an action for the recovery of debt, it must be proved to the satisfaction of the justice that there is a cause of action arising upon contract, express or implied; and either that the defendant is about to depart from the state with intent to defraud his creditors, or that he has been guilty of fraud in contracting the debt or incurring the obligation, or that he has removed, concealed, or disposed of his property, or is about to do so,…