{
  "id": 5215421,
  "name": "The People of the State of Illinois, Appellant, v. Orsie Tate, et al., Principals, Dominic Cerino, Surety, Appellee",
  "name_abbreviation": "People v. Tate",
  "decision_date": "1960-06-14",
  "docket_number": "Gen. Nos. 47,997, 47,998, 47,999, 48,000, 48,001, and 48,002, Consolidated With Gen. No. 47,996",
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  "last_updated": "2023-07-14T20:04:57.785518+00:00",
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  "casebody": {
    "judges": [
      "MURPHY, P. J. and BURMAN, J., concur."
    ],
    "parties": [
      "The People of the State of Illinois, Appellant, v. Orsie Tate, et al., Principals, Dominic Cerino, Surety, Appellee."
    ],
    "opinions": [
      {
        "text": "MB. JUSTICE KILEY delivered\nthe opinion of the court.\nThe People have appealed from a judgment dismissing scire facias proceedings upon forfeiture of bonds. The trial court dismissed the -writs in the several cases upon the same ground, i. e., the returns \u201cnot found\u201d as to the principal cognizors were made less than five days before the return days. The cases have been consolidated in this court.\nIn all these cases the writs issued upon forfeiture of bonds in offenses against the Criminal Code. The writs issued April 29, 1959, and were returnable June 5, 1959. The bailiff\u2019s returns as to the principal cognizors were made \u201cnot found\u201d on June 1, 1959.\nBecause the underlying cases were of a criminal nature the scire facias proceedings were required to conform to section 625 of the Criminal Code, Ill. Rev. Stat., ch. 38 (1959). People v. Rocco, 4 Ill.App.2d 238, 124 N.E.2d 25. That section provides, inter alia: \u201c. . . which scire facias shall be served in like manner as process of summons in a civil action upon such person and his sureties at least 5 days before the return day on which the same is returnable; and in case the person aforesaid cannot be found by the sheriff, he shall make return of that fact. . . .\u201d\nThe People did not question in the trial court the capacity of the surety to challenge the jurisdiction of the court because of the alleged inadequate return of the writ. The question cannot therefore be raised in this court.\nThe vital question, decisive of the consolidated cases before us, is whether the \u201cnot found\u201d returns as to the principal cognizors less than 5 days prior to the return days prevented the trial court\u2019s jurisdiction to proceed to judgments against the surety.\nIt is true the court had no jurisdiction to proceed to judgment upon the defective service of the writ. Banta v. People, 53 Ill. 434; People v. Wascher, 263 Ill. App. 614; People v. Moore, 143 Ill. App. 382; People v. Thomas, 198 Ill. App. 409. It is not true, however, that the court lost jurisdiction of the case because it then had no jurisdiction of the person. Lane v. People, 76 Ill. 300; People v. Wascher, 263 Ill. App. 614; People v. Lewis, 209 Ill. App. 3; People v. Thomas, 198 Ill. App. 409. The trial court could have continued the cause for issuance and service of an alias scire facias. Lane v. People, 76 Ill. 300; People v. United States Fidelity & Guaranty Co., 238 Ill. App. 112, 119; People v. Wascher, 263 Ill. App. 614.\nThe instant trial court presumably thought it was without jurisdiction to do anything but dismiss. This was a misapprehension. We are not persuaded that because the People did not seek the alias writ in the trial court this Court is precluded from deciding that the trial court had power to order the alias. The trial court\u2019s misapprehension of its power is our warrant for considering the point.\nThe judgment is reversed and remanded for further proceedings. Banta v. People, 53 Ill. 434.\nReversed and remanded.\nMURPHY, P. J. and BURMAN, J., concur.",
        "type": "majority",
        "author": "MB. JUSTICE KILEY delivered"
      }
    ],
    "attorneys": [
      "Benjamin S. Adamowski, State\u2019s Attorney of Cook County (Francis X. Biley and John T. Gallagher, Assistant State\u2019s Attorneys, of counsel) for appellant.",
      "Le Boy Winer, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Appellant, v. Orsie Tate, et al., Principals, Dominic Cerino, Surety, Appellee.\nGen. Nos. 47,997, 47,998, 47,999, 48,000, 48,001, and 48,002, Consolidated With Gen. No. 47,996.\nFirst District, Second Division.\nJune 14, 1960.\nBenjamin S. Adamowski, State\u2019s Attorney of Cook County (Francis X. Biley and John T. Gallagher, Assistant State\u2019s Attorneys, of counsel) for appellant.\nLe Boy Winer, of Chicago, for appellee."
  },
  "file_name": "0316-01",
  "first_page_order": 326,
  "last_page_order": 328
}