General Bonding & Casualty Ins. Co. v. State

• Decision Date: 28 May 1913
• Citation: 165 S.W. 615
• Parties: GENERAL BONDING & CASUALTY INS. CO. v. STATE.
• Court: Texas Court of Criminal Appeals

165 S.W. 615

GENERAL BONDING & CASUALTY INS. CO. v. STATE.

Court of Criminal Appeals of Texas.

May 28, 1913.

On Motion for Rehearing, January 28, 1914.

Dissenting Opinion, April 22, 1914.

Appeal from Criminal District Court, Dallas County; Barry Miller, Judge.

Proceeding by the State of Texas against the General Bonding & Casualty Insurance Company for the forfeiture of a bail bond. From a judgment of forferfeiture, defendant appeals. Affirmed.

T. L. Camp and Walter M. Nold, both of Dallas, and W. F. Ramsey and C. L. Black, both of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

In this case it appears that one Henry Jackson entered into a bail bond to make his personal appearance before the criminal district court of Dallas county, the bond reciting that: "Whereas, the above bounden Henry Jackson stands legally charged in the criminal district court of Dallas county with the offense of a felony against the peace and dignity of the state: Now the condition of the above bond is such that, if the above bounden Henry Jackson shall make his personal appearance, as required by law, before the honorable criminal district court of Dallas county, Texas, at the present term thereof, at the courthouse in the city of Dallas, in the county and state aforesaid, instanter, and there remain from day to day and term to term of said court, and not depart until discharged by due course of law, then and there to answer said above described charge, then, in this case, the above bond to be null and void; otherwise, to be and remain in full force and effect." This bond was dated October 21, 1911, and thereafter this cause was transferred to district court No. 2, in Dallas county, Texas, and on March 18, 1912, the defendant failing to make his appearance, the bond was declared forfeited, and citation ordered issued on the judgment nisi entered on the bond.

The citation was issued on the 19th day of March, 1912, and was served on the 20th day of March, 1912; the said citation reading as follows: "Whereas, in a certain criminal cause pending in the criminal district court No. 2 of Dallas county, Texas, entitled The State of Texas v. Henry Jackson, No. 124, wherein the said Henry Jackson is charged by indictment with the offense of murder, on the 21st day of October, A. D. 1911, the said defendant, Henry Jackson, did enter into a bond with the General Bonding & Casualty Ins. Co. as his surety in the penal sum of fifteen hundred dollars, conditioned that the said Henry Jackson would make his personal appearance before the criminal district court of Dallas county, Texas, to answer said indictment, and there to remain from day to day and from term to term of said court until legally discharged; and whereas, said cause has been transferred to the criminal district court No. 2 of said county, and the said Henry Jackson did, on the 18th day of March, A. D. 1912, when the said cause was called for trial in said court, fail to make his personal appearance before said court to answer the said accusation, whereupon his name was, by order of the court, called distinctly, at the courthouse door, and the said Henry Jackson not having appeared within a reasonable time after such call was made, it was considered, adjudged, and decreed by the court that the said bond be declared forfeited, and that the state of Texas do have and recover of and from the said Henry Jackson, as principal, and of and from the said General Bonding & Casualty Ins. Co, as his surety, the sum of fifteen hundred dollars, and it was ordered, adjudged, and decreed by the court that the said judgment would be made final, unless good cause be shown, at the next term of the court, why the defendant Henry Jackson did not appear: This is therefore to command you that you summon the said Henry Jackson, principal, and the General Bonding & Casualty Ins. Co., surety on said bond, to be and appear before the next term of the criminal district court No. 2 of Dallas county, Texas, to be begun and holden at the courthouse in the town of Dallas on the 1st day of April, A. D. 1912, and show cause why the forfeiture of said bond should not be made final. Herein fail not, but have you then and there this writ, with your return thereon, showing how you have executed the same."

Thereafter, on the 1st day of April, 1912, the General Bonding & Casualty Insurance Company filed an answer, first demurring to "plaintiff's petition, and says that the matters and things therein pleaded are insufficient in law," praying the judgment of the court, and then files a general denial, and says that this defendant "denies each and every allegation in plaintiff's petition contained, and demands strict proof thereof." This is all the answer filed.

When the case was called for trial, the plaintiff dismissed as to Henry Jackson, the principal in the bond, and to the action of the court in permitting the state to dismiss as to Jackson the defendant reserved a bill of exceptions, on the ground that it was not shown that said defendant resided beyond the limits of the state, or that his residence was unknown, or that he was dead, or actually or notoriously insolvent, etc. In approving the bill, the court does so with this qualification: "The record shows that Jackson was a refugee from justice and that he could not be found." Having accepted the bill as thus qualified, the appellant is bound by the recitations of the qualification. Blain v. State, 34 Tex. Cr. R. 448, 31 S. W. 368; Hardy v. State, 31 Tex. Cr. R. 289, 20 S W. 561; Levine v. State, 35 Tex. Cr. R. 647, 34 S. W. 969; Brown v. State, 32 Tex. Cr. R. 119, 22 S. W. 596; Boyett v. State, 2 Tex. App. 93.

This has been the unbroken rule in this court, and as qualified by the court it is shown that it was impossible to get service on the principal named in the bond, as he was a refugee from justice. Under these circumstances it has been decided that a dismissal as to the principal would not be improper, and would not prevent a judgment against the surety. In an early case, when the Supreme Court had jurisdiction in criminal cases, that court, Judge Wheeler rendering the decision, in Gay v. State, 20 Tex. 507, held: "A suit on a forfeited recognizance, conditioned for a party's appearance to answer to an indictment, it has been held, is not a civil action. Commonwealth v. County Commissioner, 8 Serg. & R. [Pa.] 151, page 154. It is, it is said, of a criminal nature, `an instrument to coerce the appearance of the accused to take his trial—a power incident to every criminal court, a power to commit to prison, to deliver on the recognizance into the custody of the bail; these manucaptors being his jailers, and he constantly in a state of commitment. Though the action is not directly to punish the offender, yet it partakes of punishment for an offense against the state, and is not in the nature of a violation of a contract. Besides, a recognizance is a matter of record, and, when forfeited, it is in the nature, in some respects, of a judgment of record.' * * * It is an obligation of record, and differs from another bond in this: That it is the acknowledgment of a debt upon record. [Lawton v. State] 5 Tex. 271; 2 Bl. Com. 341. Such being the nature of a recognizance, the statutory provision which forbids the taking of judgment against the sureties, after a discontinuance as to the principal in a civil suit upon a contract, is not applicable to this proceeding. Besides, in a recognizance the relation of principal and surety does not exist as in other bonds or contracts. The surety differs from bail in this: That the latter actually has, or is by law presumed to have, the custody of his principal, while the former has no control over him. The bail may surrender his principal in discharge of his obligation; the surety cannot discharge himself by such surrender. The undertaking of the bail is an original undertaking for the appearance of his principal, to answer to the indictment; and hence, if he does not have his principal in court according to his undertaking, he forfeits his recognizance, and it becomes a debt of record, and he a principal judgment debtor, as between himself and the state. There was, therefore, no error in adjudging a forfeiture as to the bail, although the state dismissed the proceeding as to the principal cognizor."

The appellant cites us to the case of Brown v. State, 40 Tex. 52. In that case the judgment was reversed because there was no final disposition of the case as to one of the sureties, either of dismissal or otherwise. It is elementary that the judgment must dispose of all parties to the suit by dismissal or otherwise. In this case there was a dismissal as to the principal, for good reason shown of record, as stated by the judge in his qualification of the bill. We are also referred to the case of Blalock v. State, 35 Tex. 89, in which it was held that the judgment should dispose of all parties to the suit. In this case all parties are disposed of by the judgment. We are also referred to articles 1204, 3818, and 3819 of the Revised Statutes. In article 1204 it is provided that the surety may be sued only in those instances, as applicable to this case, "when the residence of the principal is unknown." If being a refugee from justice does not meet that requirement, we are unable to conceive a case which would do so.

We are also referred to article 3818, in which it is provided that the surety shall not be liable unless a judgment has been rendered against his principal, except in the cases provided for in article 1204. As hereinbefore stated, the contingencies provided for in article 1204 were shown by the record, and the qualification of the judge, to exist; therefore we hold that the dismissal as to the principal, he being "a refugee from justice," did not prevent a judgment from being rendered against the sureties on his bond. A bail bond has been held, and is in fact, a joint and several...