Kuhle v. People

65 Ill. App. 378, 1895 Ill. App. LEXIS 1075

• Court: Appellate Court of Illinois
• Decided: May 29, 1896
• Status: Published

Opinion

Me. J ustioe Boggs

delivered the opinion oe the Court.

The magistrate was an acting justice of the peace—a de. facto officer—and whether he was a lawfully elected and qualified justice could not be raised and determined in the action. Moreover, the appellant, by the recitals of the recognizance, admitted the officer was a justice of the peace. Therefore the plea he was not a justice was obnoxious to demurrer. People v. Meacham, 74 Ill. 292.

It appeared from the record of the proceedings before the justice, the appellant consented the recognizance “ should stand ” for the appearance of Crone on the various different days to which the cause was continued. .

Pleas N o. 3, 4 and 5 sought to present an issue of fact whether appellant had so consented.

The record kept by the justice having been filed in the Circuit Court, in pursuance of the statute, became a matter of record in that court, and the truth or falsity of the record entries could not be questioned by pleas and tried by a jury.

Hence demurrer to each of those pleas was properly sustained. Johnson v. People, etc., 31 Ill. 469.

Non est factum is not a proper plea in an action on a record such as the one at bar. Johnson v. People, sujpra.

The only remaining plea being nul tiel record there was no issue of fact for a jury to try.

The court properly refused to submit the case to a jury.

The undertaking of the appellant was Crone would “ obey the orders of the court ” in the case. Each order of continuance was in legal effect an order to Crone to appear and answer the charge on the day to which the case ivas reset to be heard. State v. Benzion, 79 Iowa, 467.

The appellant was present when each order of continuance was entered. He consented the case should be so continued from time to time. It was not necessary a new recognizance should have been executed, when each continuance was granted. The appellant could have surrendered his principal at any time and been exonerated from all liability.

He chose not to do so, and the justice properly ruled he was answerable for the failure of Crone to appear on the day the default was rendered, in obedience to“ the order of the court when the continuance was allowed. Gallagher v. The People, etc., 91 Ill. 590; State v. Benzion, 79 Iowa, 467; Gentry v. The State, etc., 25 Ark. 544.

If this view of the legal effect of the orders of continuance is correct, it is manifest there is no variance between the allegations of the scire facias and the recitals of the transcript as to the default of Crone.

The condition of the bond was such that when considered m connection with the orders of the court, it was the undertaking the appellant Crone would appear on the 15th day of June, 1895, as stated in the record of the default, and such is the legal effect of the allegations of the writ of scire facias.

There is no error in the record. Judgment affirmed.