Brown v. State
| Decision Date | 01 January 1874 |
| Parties | H. W. BROWN v. THE STATE. |
| Court | Texas Supreme Court |
1. On appeal from a final judgment against the sureties on a bail bond, the fact that the bond does not appear from the transcript to have been filed among the papers in the cause is no ground for reversal when no such defense was made in the court below, if the bond be substantially set forth in the judgment nisi and the scire facias.
2. Nor can the fact that no formal approval of the bond was made by the sheriff be ground for reversal, if it appear that the bond was returned into court by the sheriff who took it; the taking of the bond by the sheriff and its return into court is a substantial approval.
3. No judgment can be rendered against a surety on a bail bond unless judgment be at the same time rendered against the principal; nor can judgment be entered against one surety when there is no judgment, or discontinuance, as to his co-surety.
APPEAL from Houston. Tried below before the Hon. Leroy W. Cooper.
Chandler, Carleton & Robertson, for appellant.
Geo. Clark, Attorney General, for the state.
A judgment final by default was entered against appellant as surety of one Ed. Fletcher, indicted at the November term, 1870, of the district court of Houston county, on a charge of theft of hogs, from which judgment he has appealed.
The cause was called for trial during the August term, 1872, and the defendant, Fletcher, failing to appear, a judgment nisi was rendered in the usual form against the principal, Fletcher, and the securities on his bond, W. H. Cundiff and H. W. Brown.
The judgment, after reciting at length the substance of the bond, directed scire facias to issue to the sureties, Cundiff and Brown, commanding them to appear at the next term of the court and show cause why the judgment nisi should not be made final. There was service of the scire facias on the appellant, Brown, on the twenty-second of October, 1872, and a judgment final by default on the sixth day of the November term, 1872. The appellant, Brown, moved in arrest of judgment, which motion was overruled. With respect to the motion in arrest of judgment, it is sufficient to state that the grounds set forth in the motion are mere general statements or charges, and, so far as their meaning can be inferred, they are not supported by an examination of the record.
The appellant assigns as error, first, “That it is not shown that there ever was any bond filed amongst the papers in the cause.” A reply to this is found in the fact, that it is probably a clerical omission; it was not raised in the court below; if it had been raised it would have been met by an order to file it, “ nunc pro tunc;” and as the judgment nisi and the scire facias set out the bond in substance, it is too late to raise this...
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Joe's Bonding Co. v. State
...rendered as to the sureties and the principal. The whole matter in controversy must be finally disposed of as to all parties.' In Brown v. State, 40 Tex. 49, the final judgment was held erroneous because it was rendered against one surety without rendition of judgment as to the principal an......
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