Steen v. State , 27 Tex. 86 ( 1863 )

Bell, J.

We are of opinion that there is no error in the judgment of the court below. It appears that the writ of scire facias was not served on several of the parties against whom the .final judgment was rendered; but the record contains an answer for the defendants beginning as follows: “And now come tho defendants in the above entitled cause, against whom a judgment nisi was taken at the last term of this court,” &c. This must be held to be an answer for all those against whom the judgment nisi was rendered; and when we look back to that judgment, we .find that it was rendered against all the parties to the bond, except H. Chambers. The answer cured the want of service.

It is assigned for error that the judgment was rendered against one H. Chambliss, when there was no such name on the bond filed in the cause in the court below. This assignment does not appear to be well founded. The name of H. Chambers is found in the final judgment, and the same name appears to the bond. If it had been objected that the judgment final was erroneous against H. Chambers, because no judgment nisi had been rendered against him, the objection would have been tenable, and must have led to-the reversal of the judgment.

But 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.

In this case the scire facias is treated as setting forth the cause of action, and the scire facias alleges that judgment nisi was rendered against H. Chambers and all the other parties to the bond. ;

The mistake as to the middle name of" the party indicted, the principal in the bond, is not a material matter. Ho injury is shown to have resulted from the mistake. (See the cases of McKay v. Speak, 8 Tex., 376; The State v. Manning, 14 Tex., 405; Cummings v. Rice et als., 9 Tex., 527.)

The judgment of the court below is affirmed.

Judgment affirmed.