State v. Russell , 24 Tex. 505 ( 1859 )

Bell, J.

This was a suit by scire facias upon a forfeited bond. At the Spring Term, 1857, of the District Court, there was an order of the court, forfeiting the bond, and commanding writs of scire facias to issue to the parties. These orders appeared on the judge’s docket, but were not carried into the minutes of the proceedings of the court. At the Fall Term, 1857, the district attorney moved that the judgment nisi be formally entered as of the previous term; and this was done. Writs of scire facias then issued, in which all the facts were recited, and these writs were served on the sureties in the bond.

The defendants demurred to the writs of scire facias, answered to the merits, and also moved the court to quash the writs, because the bond upon which the judgment nisi was rendered, did not appear to have been taken by any officer authorized by law to take such a bond. The demurrer of the defendants was overruled. Ho formal action appears to have been taken on the motion to quash the writs. The case was submitted to the judge.

The district attorney called the magistrate who held the examining court, and by whom the bond had been taken, to identify the bond as the same taken by him upon the examination of the principal obligor upon a criminal accusation. The magistrate identified the bond, and stated further, upon examination by the defendants, that he had, after the examination of the principal obligor, upon the criminal charge, taken another bond, with one McKee and others, as sureties; that his examining court adjourned about the fifth day of the month; and that, some days thereafter, the securities on the first bond became dissatisfied, and the principal obligor came to him and proposed to give another bond, whereupon the bond before the court was executed, received by the magistrate, and returned to the District Court; the bond first taken having been destroyed or cancelled. To this statement of the magistrate, the district attorney objected, and took a bill of exceptions. The court received the statement of the magistrate, and gave judgment, that the judgment nisi previously rendered, be set aside, and that the bond be quashed.

We think there was no error in the proceedings, for which the judgment can be reversed. Doubtless, if the motion to quash the writs had been separately heard by the court, the same facts as to the circumstances under which the bond was executed, would have been made to appear. The district attorney felt it to be necessary to examine the magistrate by whom the bond had been taken, in order to explain the circumstances under which the bond was executed; and we do not think the court erred in permitting the defendants to elicit from the magistrate other facts than those inquired about by the district attorney, by which the invalidity of the bond would be shown. After the adjournment of his examining court, the magistrate had no authority of law, for taking the bond. The sheriff was the only officer who could take a bond, under such circumstances. The judgment of the court below is affirmed.

Judgment affirmed.