Appeal from the Municipal Court of Chicago; the Hon. DANIEL J.
McNAMARA, Jr., Judge, presiding. Judgment reversed.
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
This is an appeal by Lenwood Dowery from a judgment against him for $100 and costs entered June 23, 1960 in a scire facias proceeding on a recognizance bond given by John Garfield as principal and Dowery as surety, in an assault and battery charge against Garfield. Appeals were also taken by Dowery from two prior orders, one entered October 13, 1959 setting aside the order entered October 2, 1957 which had vacated the bond forfeiture, and another entered June 15, 1960 denying defendant's motion to vacate the order of October 13, 1959. A multiplicity of motions and orders is involved. There are motions to vacate orders, motions to vacate orders vacating orders, and motions to vacate orders vacating orders vacating orders. This is not the affectation of a current literary style. It is a literal statement of what occurred, as shown by the bewildering record in this case. Therefore, a chronological account of events leading to the judgment is necessary.
November 30, 1956, John Garfield was charged with assault and battery. He posted bond in the amount of $100 with Lenwood Dowery as surety, conditioned upon Garfield's appearance at the hearing.
February 1, 1957, the court ordered that the recognizance of Garfield and Dowery be forfeited and that capias issue.
February 18, 1957, scire facias was issued. This recited that Garfield was duly called on February 1, 1957 to answer the charge and that, failing to appear, default was taken against him and Dowery, the obligation declared forfeited, and the parties required to appear March 13, 1957 to show cause why forfeiture should not be made absolute and judgment entered against them.
March 13, 1957, Dowery filed his appearance in the scire facias proceeding and the cause was continued.
July 8, 1957, a motion to vacate the bond forfeiture of February 1, 1957 was overruled by Judge Harrington. This order was never vacated.
October 2, 1957, Judge Drymalski sustained a motion of Dowery to vacate the bond forfeiture of February 1, 1957, making no mention of the previous disposition by Judge Harrington.
October 9, 1957, Judge Drucker dismissed the scire facias on payment of $6 costs.
June 5, 1959, the state's attorney filed a petition to vacate the order of October 2, 1957 which set aside the bond forfeiture.
October 13, 1959, with defendant present, the court vacated the order of October 2, 1957 and on simple motion by the state's attorney the court also vacated the order of October 9, 1957 dismissing the scire facias on payment of $6 costs.
January 12, 1960, defendant moved to vacate the order of October 13, 1959 and this motion was denied on June 15, 1960.
June 23, 1960, the court found the forfeiture of recognizance absolute and entered judgment against defendant and surety for $100 and $6 costs.
We will first consider the appeal from the orders of October 13, 1959 and June 15, 1960 which preceded the order of June 23, 1960. These orders covered the bond forfeiture and were based upon the petition of plaintiff filed June 5, 1959. The petition set forth the statute relating to bond forfeitures, Ill. Rev Stats 1959, c 38, § 625(f), and Rule 9, Paragraph 3, of the Rules of the Municipal Court in Relation to Bail, which provide that a forfeiture may be vacated if, within fifteen months of its rendition, a written motion is filed and a copy served upon the state's attorney, setting forth that the accused was apprehended or had surrendered, or had died, or had been convicted and imprisoned by some other state or the United States. The petition alleged that no written motion or petition had been filed and that no proof of record had been had in the case, as required for the vacation of an order of forfeiture after the expiration of the thirty day period, nor was any such application or proof of record made within said thirty days. To set aside a forfeiture the condition of the statute must be met. People v. Sullivan, 339 Ill. 146, 152, 171 N.E. 122, 125; People v. Rocco, 4 Ill. App.2d ...