Thomas v. People

13 Ill. 696

• Court: Illinois Supreme Court
• Decided: June 15, 1852
• Status: Published

Opinion

Catón, J.

These two cases are alike, and but one opinion need be filed in the disposition of both. They are judgments upon two writs of scire facias entered by default, and although several objections were taken upon the argument, we only deem it necessary to notice one. The writs ,6f scire facias are altogether insufficient to authorize judgments upon them. They do not clearly show before what court the recognizances were entered into, nor for what offences the principal in the recognizances was indicted. These should have been shown by averments in the writs of scire facias. But, above all, they do not show that any judgment pf forfeiture had ever been entered upon the recognizances. They merely show the non-appearance of the principal cognizor according to the exigencies of the recognizances. After setting forth the recognizances, the writs of scire facias proceed, “And the said John High having failed to appear at the said term of the said court to answer to the said indictment, as we by the suggestion of the people aforesaid by their States-attorney have understood; We therefore command you,” &c. Now here is no judgment of forfeiture whatever, but merely the recital of a state of facts, which would have authorized the court to enter such judgment. We cannot look to the orders of the court, which were made at the time of the defaults, which seem to be embodied in the records, and which might have justified the proper averments in the writs of scire facias, for the question arises upon the sufficiency of these pleadings themselves. They should have shown judgments upon which executions could be awarded.

The judgments of the Circuit Court must be reversed.

Judgments reversed.