Goldsby v. State
| Decision Date | 19 July 1929 |
| Citation | 19 S.W.2d 241 |
| Parties | GOLDSBY v. STATE. |
| Court | Tennessee Supreme Court |
Appeal from Criminal Court, Shelby County; J. Ed Richards, Judge.
Proceeding by the State against D. R. Goldsby to forfeit an appearance bond. From a final judgment of forfeiture, defendant appeals. Affirmed.
T. L. Campbell, of Memphis, for plaintiff in error.
W. F. Barry, Jr., of Nashville, for the State.
This is an appeal by D. R. Goldsby from a final judgment of forfeiture rendered against him as surety on an appearance bond, of which Sam Willis was principal. The penalty of the bond was $500, and the judgment thereon is for the full amount, with costs.
The conditional judgment of forfeiture was rendered by the criminal court of Shelby county in March, 1927, and was made final in September, 1927. This final judgment was wholly void in so far as Goldsby is concerned, for the reason that he had not been served with scire facias, nor had the provisions of section 5179 of the Code of 1858 (Shannon's Code, § 7143) been complied with, so as to excuse personal service.
On December 1, 1927, scire facias was issued and was executed upon Goldsby on December 5, by which the plaintiff in error was directed to appear before the criminal court on the third Monday in January, 1928, and show cause why the judgment of forfeiture should not be made final.
It appears from the record by inference that the sheriff, apparently overlooking the scire facias last mentioned, undertook to levy an execution of the judgment of September, 1927, in the early part of 1928. The minutes of the criminal court for May 21, 1928, recite that an "injunction has been filed restraining the sheriff from further action on same." Subsequently, in June, 1928, the Attorney General moved for a final judgment.
It appears from a bill of exceptions that the plaintiff in error made his appearance in response to the scire facias executed upon him, filing two petitions for relief against a final judgment, one on April 27, 1928, and another on June 23, 1928.
On the date last mentioned, the cause was heard upon the motion of the state for a final judgment as to the plaintiff in error, and the judgment of the trial court recites, "which motion having been heard and fully understood by the court is granted, and final judgment granted, whereupon the defendant D. R. Goldsby prayed an appeal, which appeal was granted," etc.
This final judgment is attacked for deficiency in form. It has the effect, by reference, merely of removing the condition to the execution of the original judgment of March, 1927. While it would have been better practice to incorporate in the final judgment the recitations of the conditional judgment, it was not essential that this be done. Certainly any deficiency in the form of the final judgment rendered by the trial court may be corrected in this court, upon affirmance, since, on an appeal in the nature of a writ of error, the judgment to be rendered by this court is that which the trial judge should have rendered. Cowan v. State, 117 Tenn. 247, 96 S. W. 973; McCampbell v. State, 116 Tenn. 98, 93 S. W. 100.
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...gives notice of an incidental proceeding in an extant case. State v. Frankgos, 114 Tenn. 76, 85 S.W. 79 (1905); Goldsby v. State, 159 Tenn. 396, 19 S.W.2d 241 (1929). Thus, by entering into the bail bond agreement and assuming custody of its principal, the surety submits itself to the in pe......
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...cases were appealed directly to the Supreme Court and not to the Court of Appeals. Examples of such appeals are Goldsby v. State, 159 Tenn. 396, 19 S.W.2d 241 (1929), and Wallace v. State, 196 Tenn. 577, 269 S.W.2d 780 (1953). In neither of these two opinions is the question of jurisdiction......
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