People v. Hathaway

102 Ill. App. 628, 1902 Ill. App. LEXIS 580

• Court: Appellate Court of Illinois
• Decided: July 2, 1902
• Status: Published

Opinion

Mr. Justice Waterman

delivered the opinion of the court.

To the appeal to this court, taken July 26, 1899, E. S. Masterson and William 0. Furman were parties; this court took jurisdiction of such appeal and entered judgment therein. Neither of the parties to said appeal can now question the jurisdiction therein of this court over the parties thereto; nor under the pending writ of error, validity or judgment of this court entered upon such appeal.

The court had jurisdiction of the subject-matter, and its judgment, however erroneous, is binding upon the parties to the appeal.

The particular method followed in beginning a suit or in taking an appeal is of little consequence provided the defendant or appellee come into court and acknowledge the jurisdiction thereof.

The condition of the bond was that Furman appear from day to dav until “ the matter shall be finally disposed of by said court.” The matter was not finally disposed of by the County Court July 26, 1899; its order that day entered was, upon appeal, reversed by the Appellate Court, and thereafter stood as if it had never been made. Schuman v. Helberg, 62 Ill. App. 218; Goodman v. Turner, 94 Ill. App. 530; Chickering v. Failes, 29 Ill. 294-303; Cable v. Ellis, 120 Ill. 136.

The cause was, after the reversal of the order of July 26, 1899, redocketed in the County Court and it properly entered an order remanding the body of Furman to the custody of the sheriff. This writ of error being from a judgment rendered for William C. Furman, the defendant, in a suit brought upon the aforementioned bond signed by Carrie B. Hathaway, as surety for the appearance of William Furman, what was the effect upon her obligation of ’ the discharge of Furman by the County Court?

Bailors for the personal appearance of one who has been arrested become, in effect, the custodians of their principal, and can take him anywhere and at any time surrender him to the sheriff. Such is, under the law, a condition of the bond, and a security by which they may save themselves from loss. Whipple v. The People, 40 Ill. App. 301.

When by order of the .County Court, Furman was discharged, he was no longer in the custody of any one; neither Firs. Hathaway nor the sheriff could then hold or restrain him from going "where he chose; the obligation of his surety thus came to an end. Ingersoll v. Strong, 9 Met. 447; Lockwood v. Jones, 7 Conn. 431.

Had the creditor upon the making of the order of discharge filed, instanter, the bond required to make the appeal effective, so that there had been no interval in which Fur-man could have escaped, a different question would have been presented. As it is there was an interval of weeks during which the order of discharge was in full force, not suspended by appeal. Williamson v. Gale, 4 Graft. (Va.) 180-183.

The reversal of such order does, as to Furman, make it as if it had never been; the question of the right to re-arrest him is not before us, but Firs. Hathaway, while having an interest in, was not a party to, the proceeding under which Furman was discharged. Her obligation having come to an end, is not revived by the judgment of reversal, on appeal, rendered by the Appellate Court,, to which appeal she was not a party.

In Mrs. Hathaway’s petition to have an exoneretwr entered in accordance with section 24'of chapter 16 of the Bevised Statutes, the only question presented to the court was her right under said section. It was therein adjudged only that she was not for that cause entitled to an exoneretur. Other questions involved in the present case were not, upon her petition, before the court.

The judgment of the County Court is affirmed.