Bowen v. State, 40079
| Decision Date | 15 March 1967 |
| Docket Number | No. 40079,40079 |
| Citation | 413 S.W.2d 915 |
| Parties | Clifford Henry BOWEN et al., Appellants, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Brooks Holman, Austin, for surety Jack B. McClellan.
Gene Compton, Dist. Atty., Bob D. Slough, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State's Atty., Austin, for the State.
This is a bond forfeiture case. On the 4th day of April, 1966, the principal, Clifford Henry Bowen, posted bail in cause No. 13,107, in the 47th District Court of Potter County, Texas, in which cause the principal was charged by complaint with the felony offense of possession by a felon of burglary tools. J. H. Stelfox, of Travis County, Texas, and appellant, Jack B. McClellan, signed the principal's bail bond as sureties. The amount of the bond was seven thousand five hundred dollars ($7,500.00).
On the first day of August, 1966, No. 13,107 was called and the defendants, principal, having failed to appear, judgment nisi was entered forfeiting said bond.
Citation was issued and served on each of the sureties.
The Surety J. H. Stelfox answered by general denial. Appellant filed motion to quash the citation; plea in abatement; motion to set aside the judgment nisi and subject to such motions and plea his original answer. He also filed demand for a jury.
After the foregoing motions, pleas, answers and jury demand had been on file for some 18 days, the state filed motion for summary judgment alleging that there were no material fact issues in the cause and no sufficient cause had been shown for the failure of the principal to appear.
Appellant filed motion in opposition to the state's motion without waiving any of his pleas and motions previously filed and hearing was held on October 20, 1966. Appellant's motion to quash the citation; his plea in abatement and motion to set aside the judgment nisi being, in turn, overruled, the court, at the conclusion of the hearing, rendered judgment making final the judgment nisi and ordered that the state recover from Clifford Henry Bowen, principal, Jack B. McClellan and J. H. Stelfox, sureties, the sum of $7,500.00 and costs of suit.
Jack B. McClellan alone appeals.
Appellant's first point relates to the overruling of his motion to quash the citation, his contention being (A) that the citation is contrary to law and hence void, since it is directed to 'any sheriff or any constable within the State of Texas,' (Rule 15 Texas Rules of Civil Procedure) rather than to the defendant (Rule 101 T.R.C.P.); and (B) the citation does not contain the name of appellant Jack B. McClellan, but contains that of Jack B. McLellan.
Appellant having filed answer, subject to his motion to quash the citation, was before the court for all purposes and the defect in the citation was waived. Hickey et al. v. Sibley, Tex.Civ.App., 304 S.W.2d 165; see also Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119 and since adopted Rule 120a T.R.C.P.
Appellant's second point relates to the variance between appellant's true name, Jack B. McClellan, which he signed to the bail bond and the Oath of Sureties, and the name Jack B. McLellan used in the judgment nisi.
The Oath of Sureties was sworn to in Travis County before appellant's counsel in his capacity of Notary Public. The name 'Jack B. McLellan' is typewritten only in this oath.
It is apparent that McClellan and McLellan both refer to the same person and that the judgment appealed from is against Jack B. McClellan, the person who signed his name to the bond and to the Oath of Sureties.
In view of such facts, we do not regard the variance between the judgment nisi and the bond as fatal. The judgment nisi followed the spelling of appellant's name typewritten in his Oath as a surety, rather than the deciphering of his signatures. We further observe that the names McLellan and McClellan appear to be idem sonans.
Appellant's third point is that the trial court erred in granting summary judgment because his motion and affidavits in opposition sufficiently apprised the trial court of the existence of fact issues which should have been tried to a jury, and which, if found in appellant's favor, would have entitled him to exoneration or, in the alternative, to remittitur of the amount of the bond.
As to exoneration, appellant directs attention to four affidavits in opposition to the state's motion for summary judgment. One is appellant's affidavit to the effect that he was not a resident of Potter County and received no notice of any kind prior to or on the first day of August 1966 that the criminal cause 'was called for trial on said date.' Another is the affidavit of appellant's co-surety to the...
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...Antonio 1974, no writ); Hickey v. Sibley, 304 S.W.2d 165, 166 (Tex.Civ.App.--Waco 1957, no writ); see also Bowen v. State, 413 S.W.2d 915, 916 (Tex.Crim.App.1967) (bond forfeiture case holding answer filed "subject to" motion to quash service of citation constituted general answer). These c......
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Lopez v. State
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