Steen v. State

• Decision Date: 01 January 1863
• Citation: Steen v. State, 27 Tex. 86 (Tex. 1863)
• Parties: JAMES T. STEEN AND OTHERS v. THE STATE.
• Court: Texas Supreme Court

27 Tex. 86

JAMES T. STEEN AND OTHERS

v.THE STATE.

Supreme Court of Texas.

1863.

Judgment nisi was rendered against the principal and all the sureties except one, on a forfeited bond for the appearance of the principal, indicted for assault with intent to kill and murder; scire facias issued against all the parties except one of the sureties; served on principal and part of the sureties. An answer was filed, beginning as follows, to wit: “And now come the defendants in the above entitled cause, against whom a judgment nisi was taken at the last term of this court,” etc. Held, to be an answer for all those against whom judgment nisi was rendered, and that the answer cured the want of service.

In the above stated case, the defendants assigned as error that a judgment final was rendered against one of the sureties, whose name did not appear on the bond, when in fact it did appear on the bond, but not in the judgment nisi: Held, that the assignment was not well taken, and that, if they had assigned as error that judgment final was rendered against one of the sureties against whom no judgment nisi was taken, then this objection would have been tenable.

Where errors are assigned, the party is concluded by his own assignment, and the court will not reverse for errors that are not assigned, unless they are such as go to the foundation of the action.

A mistake in the middle name of a party indicted, the principal in a bond, is not a material matter, no injury being shown to have resulted from the mistake.

APPEAL from Smith. Tried below in the district court of Smith county.

At the June term, 1857, an indictment was returned against James Steen for assault with intent to kill. On service of capias, he, as principal, and fourteen sureties, executed a bond in the usual form for his appearance at the next term of the court. At that term judgment nisi was rendered against James T. Steen, and all the sureties except H. Chambers. Scire facias was issued against all the parties except H. Chambers, and served on eight of the sureties, including H. Chambers. At the return term, the defendants, by counsel, filed an answer, beginning as follows, to wit:

“And now come the defendants in the above entitled cause, against whom a judgment nisi was taken at the last term of this court, and bond forfeited,” etc., and moved the court to quash the bond, for causes assigned, and the judgment nisi be set aside.

The motion was overruled, and judgment final rendered against James T. Steen and all the sureties, including H. Chambers, against whom no judgment nisi had been taken.

Among the errors assigned was the following: The court erred in rendering judgment against one H. Chambers, when there was no such name on the bond filed in said cause in the court below.

R. H. Hubbard, for appellants.

Attorney General, for appellee.

BELL, J.

We are of opinion that...