Spillman v. the People
| Decision Date | 30 November 1884 |
| Citation | 16 Bradw. 224,16 Ill.App. 224 |
| Parties | WILLIAM SPILLMAN ET AL.v.THE PEOPLE, ETC. |
| Court | United States Appellate Court of Illinois |
ERROR to the Circuit Court of McLean county; the Hon. O. T. REEVES, Judge, presiding. Opinion filed January 16, 1885.
Mr. W. L. BROWN, for plaintiff in error; that it was error to permit defendants in error to read counter affidavits on the motion to set aside the default, cited Thelin v. Thelin, 8 Bradwell, 421; Mendell v. Kimball, 85 Ill. 582.
As to amending the scire facias: Kennedy v. People, 15 Ill. 418; Conner v. People, 20 Ill. 381; Bacon v. People, 14 Ill. 312.
The judgment is contrary to law: Wilson v. People, 10 Bradwell, 357.
Mr. ROBERT B. PORTER, for defendants in error; that a scire facias may be amended, cited Peacock v. People, 83 Ill. 331; R. S. Ch. 7, §§ 2, 6, 9; Compton v. People, 86 Ill. 176; Marshall v. Maury, 1 Scam. 231.
The surety was held on this bond and judgment to produce his principal on expiration of stay of execution, and was not released by producing him to plead: People v. Ogden, 10 Bradwell, 226; Chilton v. People, 66 Ill. 501; Wolfe v. McClure, 79 Ill. 564; Schill v. Reisdorf, 88 Ill. 411; Richardson v. People, 85 Ill. 495; McLain v. People, 85 Ill. 205; Coons v. People, 76 Ill. 383; People v. Shannon, 10 Bradwell, 364; Brandt on Suretyship, §§ 432, 433, 444; Wintersoll v. Com., 1 Duval (Ky.), 177; Com. v. Douglas, 11 Bush, (Ky.) 607.
This was a proceeding in the circuit court by scire facias upon recognizance against William Spillman as principal, and Joseph Schicane as surety. The recognizance was taken before a justice of the peace and bound said Spillman in the sum of one hundred dollars to be and appear at the circuit court on the first day of the next term thereof, being the 29th day of January, A. D. 1883, and from day to day, and from term to term, and from day to day of each term until final settlement or order of the court, to answer for the offense charged, and to abide such final sentence or order, and to do and receive what should be by the court then and there enjoined upon him, and not to depart without leave. This recognizance was filed in the circuit court on the 23d day of January, 1883; the same having been taken on the 19th day of the same month.
At the next term of the court an indictment was found against Spillman to which he pleaded guilty and was sentenced to pay a fine of fifty dollars and costs, and was ordered committed to the custody of the sheriff until the fine and costs should be paid. The court, however, on Spillman's motion, suspended the order of commitment for six months, and he was permitted to depart from the court without further security, and the cause went off the docket.
At the September term, 1883, a motion was made on behalf of the people, to re-docket the same, which motion the court, after requiring Schicane to be notified thereof, allowed. Thereupon Spillman was called and a judgment of forfeiture of the recognizance entered with scire facias to Schicane.
The writ issued on the 18th day of October, 1883, returnable to the November term of the same year, and service was duly had upon Schicane. No appearance having been entered on his behalf the judgment was made final on the 13th day of November.
On the 17th day of November, 1883, said Schicane entered his motion to set aside the final judgment so rendered, and for leave to plead to the merits, which motion the court overruled at a subsequent term. Two days thereafter, the people, by their attorney, moved the court for leave to amend the sci. fa. by changing the recital of the judgment of forfeiture from the September term, 1882, to the September term, 1883; which motion the court allowed, and Schicane excepted thereto.
It is now claimed that it was error to allow this amendment, and that, without it, the judgment itself was erroneous and ought to be reversed. The sci. fa. recited a forfeiture prior to the filing of the recognizance in the circuit court. The amendment was not made nor asked for before final judgment, nor at the same term at which it was rendered; nor was it made until after the motion to set aside the final judgment had been overruled. It does not, therefore, come under the provision of section 23 of the Practice Act, but, if allowable at all, it would seem to be governed by the Statute of Amendments and Jeofails. Appellant, however, did not ask leave to plead to the amended sci. fa., but had interposed a motion for leave to plead to the merits of original writ. Had this motion been allowed we can perceive no reason why it would not then have been in order for the court to have given leave to amend the writ by the record of forfeiture. As the case must be reversed on other grounds, the record, if desired, can be amended so as to conform to the facts before another trial.
That the application to set aside the judgment presented a meritorious defense is beyond question. Spillman appeared in court, pleaded guilty to the indictment, was fined and committed to...
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