24 Ill. App. 72 | Ill. App. Ct. | 1887
It is well settled law in this State that, in order to maintain a proceeding by sci/re facias for final judgment upon a recognizance, a regular judgment of forfeiture, rendered prior to the commencement of such proceeding, must be shown. Thomas v. People, 13 Ill. 696; Kennedy v. People, 15 Ill. 418; Cable v. People, 46 Ill. 467; Banta v. People, 53 Ill. 434; Farris v. People, 58 Ill. 26.
In conformity with that rule the soil's facias avers that on the day named in the reognizance, Goldstein (the principal) being then and there three times solemnly called to answer the charge preferred against him, came not, nor anybody for him, but therein made default; and that Brown (the surety) being then and there three times solemnly demanded that he bring the body of said Goldstein into court, or that his recognizance be declared forfeited, came not, nor did he produce the body of said Goldstein, but made default therein, which was duly taken and certified upon said recognizance. ■ These averments were properly denied by a plea of nul tiel record, on which issue was joined. The burden was, therefore, upon the plaintiffs to sustain their said averments by competent evidence. The only evidence offered in that behalf was the entry by the Justice upon the back of the recognizance set out in our statement of the case, and the transcript from the Justice’s dockets from neither of which did it appear that either principal or surety was called at the time in question.
We are of opinion that the evidence adduced not only failed to support said averments, but that it was indispensable to a legal default and declaration of forfeiture, that the principal in the recognizance should have been regularly called, and upon such call failed to appear. Dillingham v. United States, 2 Wash. 422; State v. Chesley, 4 N. H. 366; State v. Grigsby, 3 Yerg. 280; White v. State, 5 Yerg. 183; Park v. State, 4 Ga. 329; United States v. Rundlet, 2 Curtis, 41; Cable v. People, 46 Ill. 467; Banta v. People, 53 Ill. 434.
But there is another reason why there was no legal breach of the condition of the recognizance shown. That condition was that Goldstein should personally be and appear before said Justice on the 30th day of March, 1885, at 8 o’clock a. m., to answer, etc.
How, the evidence adduced by plaintiffs not only fails to show a call upon Goldstein, but it shows that the Justice did not wait the expiration of an hour from 8 o’clock, but declared a forfeiture at 8 o’clock a. m. of that day. By the common. or unwritten law of this State, it is the rule that in proceedings before Justices of the Peace, which are notified to begin at a fixed hour, neither party is in default until the expiration of that hour and the commencement of the next. This is a convenient rule, prevents surprise and exacts as much promptness as is safe and reasonable. That it prevails in this State is understood by the courts and the legal profession, as well as by the generality of the community. Therefore the legal effect of the condition of the recognizance in question was that the party had all the time between 8 o’clock and 9, in which to appear, and no default before the beginning of the latter hour could be legal. United States v. Rundlet, 2 Curtis, 41.
The views expressed render it unnecessary to discuss the other point made, viz.: That there was nothing in the case showing the facts necessary to give the Justice jurisdiction.
As an outcome of the doctrine that Justices’ courts are courts of statutory and limited jurisdiction, and that their jurisdiction must always be made to appear, it has been held, that in proceedings by scire facias, upon a recognizance taken before such magistrate, such jurisdictional facts must appear from the recognizance; and in an action upon one, they must appear by averments in the declaration. In the case of The People v. Koeber, 7 Hill. 39, that doctrine was enunciated and all the then reported cases were cited. But that case as to that point was overruled in the case of The People v. Kane, 4 Den. 530, and Champlain v. People, 2 N. Y. 81. Many cases follow the doctrine of those two latter cases and hold that a Justice of the Peace, as to preliminary examinations in criminal cases, is an officer of general powers in that behalf, and jurisdictional facts need not be shown. Adams v. The Governor, 22 Geo. 417; State v. Randolph, 22 Mo. 475; State v. Grant, 10 Minn. 39; U. S. v. George, 3 Dill. C. C. 431. And the case of McParlan v. People, 13 Ill. 9, following the decisions in Kentucky, adopts the same view.
But the objection, of a want of a regular judgment of forfeiture, is insuperable and fatal to any recovery, wherefore the judgment against 'appellant must be reversed.
Judgment reversed.
