150 N.E. 634 | Ill. | 1926
The sole question presented for decision in this case is the constitutionality of the amendment of 1923 to section 17 of division 3 of the Criminal Code. Prior to the amendment the section provided the procedure for forfeiting a recognizance in a criminal case and for a hearing before entry of the final judgment. It then provided: "Before judgment, the court may, in its discretion, set aside such forfeiture, upon the accused being brought or coming into open court, and showing to the court, by affidavit, that he was unable to appear in court according to the terms of the recognizance, by reason of sickness or some other cause which shall satisfy the court that the accused had not been guilty of any laches or negligence." In 1923 there was added: "After judgment, either during term time or after the term at which the judgment was entered, upon motion and a proper showing to the court that the accused person has been apprehended or surrendered and tried, or has died or been convicted and imprisoned in some other State or by the United States, the court may vacate such judgment and set aside the forfeiture." Defendant in error, Steve Evanuk, became security in the criminal court of Cook county for Andrew Weitzman in the sum of $5000. Weitzman failed to appear for trial and the recognizance was declared forfeited December 5, 1923. February 8, 1924, a final judgment was entered and execution issued. May 8, 1924, the surety surrendered the accused and he was subsequently tried and convicted and sentenced to the penitentiary. *338 May 29 defendant in error filed his petition in the criminal court setting forth that the accused had been apprehended and tried and asking that the forfeiture be set aside and the judgment vacated. The prayer of the petition was granted. September 22, 1925, plaintiff in error filed its petition in the criminal court alleging that the amendment of 1923 is unconstitutional, that the order of May 29, 1924, is void, and praying that the order be expunged from the records. This writ of error is prosecuted to review the order denying the petition to expunge.
The section of the constitution which it is contended the amendment contravenes is section 23 of article 4, which provides: "The General Assembly shall have no power to release or extinguish, in whole or in part, the indebtedness, liability, or obligation of any corporation or individual to this State or to any municipal corporation therein." If in the consideration of this case we treat this recognizance as such an indebtedness, liability or obligation as that contemplated by the section of the constitution quoted, and as being an indebtedness, liability or obligation to the State or to the county of Cook, — neither question being free from doubt and neither of which we decide, — we do not agree that the act releases or extinguishes, or authorizes a court to release or extinguish, such indebtedness, liability or obligation. Since 1845, and perhaps before that date, the courts of this State have had authority to relieve against the forfeiture of a recognizance before judgment is rendered upon scire facias to show cause why execution should not issue against the sureties. (Weese v. People,
The purpose of a recognizance is merely to insure the presence for trial of a person accused of a bailable offense. The penalizing of the sureties, when it appears they are unable, by no fault of their principal, to perform the condition of the bond, or the enriching of the public treasury, is no part of the object at which the proceeding to forfeit the recognizance is aimed. (Smith v. People,
The fact that the court is given power to relieve against a forfeiture after judgment, where proper showing is made, does not affect the finality of the judgment. Such a proceeding is not novel. A proceeding somewhat analogous is that taken to relieve against a judgment entered by confession upon a warrant of attorney. And there are other instances, unnecessary to be mentioned here, where the court may, at a subsequent term, set aside a final judgment or decree. Until the judgment is modified or set aside it is valid and binding on all the world. If an execution is issued on the judgment and the property of the surety is sold, the title acquired by the purchaser would not be affected by a subsequent vacation of the judgment.
The final contention that the amendment delegates to the courts power properly belonging to the executive department of the government is without merit. It is a function of the courts, long recognized, to hear a petition to set aside a judgment previously entered and to grant relief in proper cases.
Plaintiff in error does not question the sufficiency of the petition filed to vacate the judgment entered on the recognizance nor of the showing made on such hearing to vacate, so we are not called upon to decide whether the court properly exercised its discretion in vacating the judgment.
The judgment of the criminal court is affirmed.
Judgment affirmed. *341