Burgemeister v. Anderson
| Decision Date | 19 March 1924 |
| Docket Number | (No. 3109.) |
| Citation | 259 S.W. 1078 |
| Parties | BURGEMEISTER v. ANDERSON, District Judge. |
| Court | Texas Supreme Court |
T. M. Campbell, of Palestine, and Chambers & Watson, of San Antonio, for relator.
W. W. Walling, of San Antonio, for respondent.
Being indicted for murder in the district court of the Thirty-Seventh judicial district of Texas, relator gave a bail bond with two sureties in the sum of $7,500. On February 1, 1915, the bail bond was forfeited, and judgment was entered that the state recover of relator and her sureties the sum of $7,500, and that the judgment be made final, unless good cause why relator did not appear be shown at the next term of the court.
Relator filed a motion in said court to set aside the judgment nisi on various grounds, one of which was that relator had voluntarily appeared and stood her trial under the indictment, and that the trial had resulted in a verdict and judgment of "not guilty." The district judge refused to entertain the motion, and, on February 11, 1918, the court entered an order dismissing the motion for the reason that "the court of its own motion refused to take jurisdiction thereof."
The facts appear from the averments of relator's petition, which is duly verified, and the exhibits attached thereto. Respondent interposes a general denial, without verification, to which absolutely no effect can be given in a mandamus suit. It therefore becomes our duty to dispose of the case as if the averments of relator's petition were admitted to be true. May, County Attorney, v. Finley, Comptroller, 91 Tex. 354, 43 S. W. 257.
The Code of Criminal Procedure particularizes each step in the collection of recognizances and bail bonds. First is the entry, after the principal's failure to appear on being called, of judgment nisi that the state recover of the defendant and of the sureties the amount for which they are bound, and that the judgment will be made final, unless good cause for the principal's failure to appear be shown at the next term of the court. Article 489, C. C. P. Second is the citation from the court notifying the sureties of the forfeiture and requiring them to appear at the next term of court and show cause why the judgment nisi should not be made final, it being declared unnecessary to give notice to the principal. Article 490, C. C. P. Third is the docketing of the case on the court's civil docket in the name of the state as plaintiff and of the principal and his sureties as defendants. Article 497, C. C. P. Fourth is the entry of final judgment by default, which is authorized only when both the sureties and the principal fail to answer, after due citation to the sureties; or, the entry of final judgment after a trial of the issues between the parties. Articles 502, 501, C. C. P.
Articles 489, 490, 497, and 502 admit of no other construction than that the principal is a party to the judgment nisi and all subsequent proceedings, and is both required and entitled to show any good and sufficient cause why the interlocutory judgment should not be made final.
By the judgment nisi the court acquires jurisdiction to adjudicate the matter of enforcing the principal's obligation to the state, as well as that of the sureties, and, on the principal's appearance and tender of issues excusing his failure to appear at the time of forfeiture, the statutes entitle him to both a hearing and a determination as to whether the judgment nisi shall be vacated in whole or in part or shall be made final.
It is not the principal's duty to cause citation to issue against the sureties, but it is the plain, ministerial duty of the clerk, which the court should require him to perform, to issue citations for service on the sureties. Failure to issue citations would warrant a continuance of a hearing...
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