Graham v. State , 12 Ala. App. 502 ( 1915 )

THOMAS, J.

The appellants were sureties on a bail, bond for $200 of one Ben Davis, indicted for crime, and as such, were answerable for his appearance at the circuit court of Autauga county. He failed to appear, forfeiture of bail was duly entered, judgment nisi for $200 was regularly rendered against him and appellants, as his sureties, and scire facias was duly issued and returned executed as to all except the defendant himself, requiring each to show cause at the next term of said court as to why said judgment nisi should not be made final for $200. — Code, § 6354 et seq.' At the term to which the scire facias was so returnable, the court, as was proper, dismissed the proceedings as to the defendant himself, who had not, as said, been served with the scire facias, and then made the judgment nisi absolute as to the sureties, appellants here, who had'been served.— Code, § 6359; Kilgrow v. State, 76 Ala. 101; Hunt v. State, 63 Ala. 196.

- The appeal is on the record proper, without a bill of exceptions, and we are not here asked to pass upon the sufficiency of the excuse offered for not having defendant at court in pursuance of the requirements of the bond. The chief and vital insistence is that the court erred, in that it made the judgment final for $250, when the bail bond itself was for only $200, as was so recited in the judgment nisi and in the scire facias served on appellants.

There is undoubtedly merit in this contention, as the court was without authority to render judgment final in excess of the amount of the bond.—State v. Hinson, 4 Ala. 671; Code, § 6359. Entire justice will be done the •appellants, however, if, after first correcting, at the expense of appellee, Autauga county, the judgment by reducing it to $200, we then affirm it (State, for Use of Fayette Co., v. Earnest, 123 Ala. 631, 26 South. 948; Hunt v. State, 63 Ala. 196), which is accordingly done.

The judgment is corrected, and, as corrected, it is affirmed, and costs of appeal taxed against Autauga county.

Corrected and affirmed.