Conner v. People

Walker, J. The record in these cases present for our consideration the same questions, and will be determined together in this opinion. There was in each case a writ of scire facias sued out of the McLean Circuit Court against defendants, to recover the amount of a recognizance entered into for the appearance of Conner to answer to indictments previously found in that court against him. The court rendered in each case a judgment by default against the defendants for the amount of the recognizance, and to reverse these judgments they bring these cases to this court. These writs were each substantially defective, in not averring that the recognizance had been returned to, and had become a matter of record in the Circuit Court, before the writs of scire facias were sued out. This was essential, and until the recognizance becomes a record, there can be no proceeding had to fix the bail or recover a judgment, and there must be an averment or recital of that fact. This is the established doctrine of this court. Noble v. The People, 4 Gilm. R. 434; Bacon v. The People, 14 Ill. R. 313. These writs were also defective in failing to aver that there had been a judgment of forfeiture against the defendants. Thomas v. The People, 13 Ill. R. 696; Kennedy v. The People, 15 Ill. R. 418. The averment that the principal cognizor had failed to appear, as had been suggested by the People’s attorney, was not an averment that there had been a judgment of forfeiture. There was no averment that the defendants had been called and defaulted, or any steps taken to fix the bail. Under our practice the writ of scire facias supplies the place of both the summons and declaration, and should contain every material allegation, to show a right of recovery, and without such averments it is insufficient to support a judgment. The writs in this case were not aided -by copying into the transcript the orders in the original proceeding, as they were not copied into the writs of scire facias, and form no part of the record in this case. The judgment of the Circuit Court in each of these cases should be reversed, and the causes remanded, with leave for the People to amend their writs of scire facias, and for further proceedings. Judgments reversed.