People ex rel. Swanson v. Sullivan

• Decision Date: 17 April 1930
• Docket Number: No. 20019.,20019.
• Citation: 339 Ill. 146,171 N.E. 122
• Parties: PEOPLE ex rel. SWANSON, State's Atty., v. SULLIVAN, Judge.
• Court: Illinois Supreme Court

339 Ill. 146

171 N.E. 122

PEOPLE ex rel. SWANSON, State's Atty.,

v.SULLIVAN, Judge.

No. 20019.

Supreme Court of Illinois.

April 17, 1930.

Mandamus by the People, on the relation of John A. Swanson, State's Attorney, against John J. Sullivan, to compel respondent, as Judge of the Criminal Court of Cook County to expunge certain orders from the records of that court.

Writ awarded.Edward E. Wilson, John Holman, and Albert C. De Witt, all of Chicago, for petitioner.

Lucius W. Winchester, of Chicago (Nash & Ahern, of Chicago, of counsel), for respondent.

STONE, J.

[1] This is an original petition for mandamus filed by the state's attorney of Cook county seeking to require the respondent, as judge of the criminal court of Cook county, to expunge from the records of that court certain orders entered therein by him. It appears from the petition that one Tom Gaublich was indicted by the grand jury of Cook county on the charge of crime against children; that on the 19th of April, 1929, he entered into a recognizance in open court in the sum of $2,500, with Katherine Johnson as surety. The condition of the recognizance is that, if Gaublich should appear in the criminal court of Cook county on the 20th of April, 1929, and from day to day thereafter until discharged by order of court, and not depart therefrom without leave, the recognizance to be void, otherwise to remain in full force and effect. The petition recites that on the 23d of April, 1929, the recognizance was forfeited, a scire facias issued returnable the first day of the May, 1929, term, and served on the surety, Gaublich not being found in the county; that thereafter, on the 6th day of May, 1929, which was the first day of the May term, judgment by default was entered on the recognizance, neither Gaublich nor the said surety appearing in response to the scire facias, and that on July 24, 1929, at the July term of said court, the surety presented to the respondent, then presiding in the criminal court of Cook county, a petition seeking to set aside the forfeiture and judgment, in which petition she alleged that ‘at the time when said forfeiture was so declared said case was not upon the call of any judge in the criminal court of Cook county and that said cause had never been set for trial, and that the clerk of the criminal court did not, prior to the declaration of said forfeiture, notify either said defendant or the petitioner, Katherine Johnson, that said case was set for trial upon any day; that said case did not appear upon any call until the 21st day of May, 1929, when said case was placed upon the calendar of Otto Kerner, a judge sitting in said criminal court; that neither said defendant nor the petitioner, Katherine Johnson, either prior to or after the declaration of said forfeiture, or at any time, was notified by the clerk of the criminal court of Cook county, Illinois, that said case was set for trial or upon the call of any judge, and that no notice was ever issued by said clerk of said criminal court.’ This petition prayed that the forfeiture and judgment be set aside.

The relator, on behalf of the people, appeared and objected that the court was without jurisdiction to set aside the forfeiture and judgment, for the reason that the term of court at which the judgment was entered had expired, and that the petition was not sufficient to entitle the surety to the relief prayed. Respondent, as judge of the criminal court, vacated and set aside the forfeiture and judgment entered on the recognizance. It further appears from the petition that on the 1st of November, 1929, the relator filed in the criminal court of Cook county on behalf of the people a verified petition, praying that the order of July 24, 1929, be expunged, canceled, and set aside, for the reason that the court was without jurisdiction to enter said order, and that the same was void. It further alleges that Gaublich was a fugitive from justice, and that said surety had not at any time offered to produce him in court or surrender him. It further recites that the respondent, as judge of the criminal court, ordered this petition of the people stricken from the files, and refused to entertain and consider the motion on the part of the people to expunge the order of July 24, 1929, from the record.

Respondent demurred to the petition on the ground that it did not show that the criminal court, at the time the order of July 24, 1929, was entered, was without jurisdiction of the cause, but that the petitioner admits the truth of the allegations of the petition filed by Katherine Johnson, surety on the recognizance, to the effect that, when the forfeiture was entered, the case was not on the call of any judge in the criminal court of Cook county and had not been set for trial, and that the clerk of the criminal court did not, prior to the declaration of forfeiture, notify either the defendant or the surety that the cause was set for trial on any day, and that the forfeiture was entered without due process of law, and on the further ground that the relator has an adequate remedy in the premises by again forfeiting the recognizance.

It is argued in support of the demurrer that the forfeiture, and therefore the judgment entered on scire facias, was void and could be set aside at any time; that the statute requiring that the defendant giving recognizance to appear from day to day should be construed to mean from day to day as directed by the court; that on April 20, 1929, the day on which the recognizance required Gaublich to appear, the case was not assigned to any judge or set for hearing on that day, and no order was entered continuing the cause until April 23, the date on which the declaration of forfeiture was entered; that it is a matter of common knowledge that indictments returned at one term of court are not tried until the subsequent term, and that it is unreasonable to forfeit the recognizance in this case on the 23d of April at the same term at which the indictment was returned. It is also argued in support of the demurrer that, since the state's attorney did not give Gaublich or his surety notice of the forfeiture by placing the case on call, the judgment entered on the recognizance may be set aside under section 89 of the Practice Act (Cahill's Rev. St. 1929, c. 110, par. 89), which has been substituted for the writ of error coram nobis, and that the action of respondent was, in effect, relief granted under that section, and that it was, and still is, a simple matter for the relator to cause the indictment against Gaublich to be assigned for trial and disposition and upon his failure to appear to secure from the court a declaration of forfeiture. It is also argued that respondent in good faith believed that the order of forfeiture on April 23, 1929, was entered without jurisdiction; that the respondent heard evidence, examined the record for the purpose of determining that question of fact, and in so doing exercised sound judicial discretion, and that his action is therefore not subject to mandamus.

Section 4 of division 3 of the Criminal Code (Cahill's Stat. 1929, p. 987) requires a recognizance in a case of the character here under consideration ‘shall be so conditioned as to bind the accused or witness personally to appear at the court having jurisdiction of the offense, on the first day of the next term thereof, to be holden in the county (specifying the time and place of holding the same), or if the court is then sitting, on some day of the term to be designated therein, and from day to day, and from term to term, and from day to day of each term, until the final sentence or order of the court, to answer for the offense charged * * * and to abide such final sentence or order, and not depart without leave.’ Section 17 of division 3 of the Criminal Code, applicable to the case before us (Cahill's Stat. 1927, p. 944), provides that, when any person giving bail for his appearance does not appear in accordance with the terms of the recognizance, ‘the court shall declare such recognizance forfeited, and the clerk of the court shall thereupon issue a scire facias against such person and his sureties, returnable on the first day of the next term of the court, to show cause why such judgment should not be rendered against such person and his sureties for the amount of the recognizance, * * * if the defendant should appear and interpose a defense, then the cause shall be tried in the same manner as other causes of a like nature, after any such recognizance shall be declared forfeited as aforesaid. 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. * * * 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.’

Prior to 1869 there was no law in this state...