People v. Brown

• Decision Date: 16 May 1962
• Docket Number: Gen. No. 10387
• Citation: 35 Ill.App.2d 182,182 N.E.2d 347
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Morris BROWN, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 347

182 N.E.2d 347

35 Ill.App.2d 182

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Morris BROWN, Defendant-Appellee.

Gen. No. 10387.

Appellate Court of Illinois, Third District.

May 16, 1962.

L. Allen Watt, State's Atty., Winchester, L. Allen Watt, Richard E. Mann, Winchester, of counsel, for appellant.

Robert Weiner, Springfield, Joseph A. Londrigan, Springfield, of counsel, for appellee.

ROETH, Presiding Justice.

On January 8, 1959, one H. Eugene Stewart appeared in the Circuit Court of Scott County and waived prosecution by indictment and consented to proceed under an information then filed by the State's Attorney charging him with the crime of confidence game. His bail was fixed at $2,000.00. On January 9, 1959, the defendant Stewart entered into a recognizance with Morris Brown as surety in the sum of $2,000.00 conditioned for his appearance on the opening day of the April, 1959, term on April 27, 1959, and from day to day and term to term thereafter until final order of court. The record does not reflect any proceedings in the criminal case on the opening day of the April term. However, on April 30, 1959, the State's Attorney appeared in court and set the case for trial on May 14, 1959, whereupon the Clerk was ordered to notify the defendant of such setting. On May 14, 1959, the State's Attorney was again present in court whereupon it appeared that neither the defendant Stewart nor his surety were present. On this date the record reflects that the bail bond of the defendant Stewart was forfeited and a scire facias was directed to issue returnable June 18, 1959. The order as entered by the court is as follows:

'Cause called for hearing. Present in Court the State's Attorney of Scott County, Ill. Motion by State's Attorney for an order of default against said Defendant, H. Eugene Stewart and the surety on the bail bond of said Defendant made. Defendant H. Eugene Stewart called three times in open Court and appears not, nor anyone for him, and makes default. Motion allowed. Bail bond of the said Defendant in the penal sum of $2,000 forfeited. It is further ordered by the Court that the Clerk of this Court issue a scire facias against said Defendant, and the surety on his bond to show cause by June 18, 1959, at 10:00 o'clock A.M., daylight savings time, why judgment should not be rendered against said Defendant and the surety on his bond in the amount of $2,000 and costs.'

On June 18, the surety Morris Brown filed a motion to vacate or modify the forfeiture of the bond, in which motion it was stated that H. Eugene Stewart was confined in the county jail of Dubuque, Iowa, and therefore could not appear. On June 25, 1959, this motion was set for hearing on July 9. It was heard on this date and continued for furnishing of briefs until July 23 and again continued to September 3 and again to September 17. On September 17 the motion was overruled. On October 8, 1959, a rule was entered on Morris Brown to answer the scire facias by October 22. On October 14 Morris Brown filed an answer in which he again set up that his principal, H. Eugene Stewart, was at that time confined to the county jail in Dubuque, Iowa, and therefore unable to appear. On October 29 the State's Attorney filed a motion for judgment on the pleadings. This motion came on for hearing on the same date and was continued to November 12, 1959, at which time the motion was taken under advisement. On November 16 the motion for judgment on the pleadings was allowed and judgment was entered on the pleadings for the People of the State of Illinois and against the defendant Morris Brown for the sum of $2,000.00. A written order was signed by the trial judge covering the entry of the judgment.

On January 24, 1961, Morris Brown filed a motion to set aside the judgment entered on November 16, 1959, in the sum of $2,000.00 against him in which he set up that on June 7, 1960, H. Eugene Stewart had been convicted in the District Court of the State of Iowa for a felony and had been sentenced to the Iowa State Penitentiary for a term of not more than 7 years and that he was presently incarcerated in the State Penitentiary pursuant to said conviction. The motion further set forth that during all of the proceedings hereinbefore related Stewart was in lawful custody in Iowa and that a detainer was in the hands of the Warden of the Iowa penitentiary and attached certain exhibits to the motion as evidence of such custody. The motion prayed that the judgment for $2,000.00 be set aside and that the bond posted on January 9, 1959, be continued until such time as H. Eugene Stewart was released from the Iowa State Penitentiary. The State's Attorney filed an answer to this motion which among other things set up that the motion to vacate the judgment had been filed too late under the provisions of the statute and that therefore the court was without jurisdiction to hear the same. To this answer a motion was filed to strike the paragraph thereof which undertook to raise this question. On April 13, 1961, the motion to vacate the judgment, the State's Attorney's answer and the motion to strike part of the State's Attorney's answer came on for hearing, at which time evidence was heard and the cause taken under advisement. On June 5, 1961, a...