Watkins v. State , 1884 Tex. Crim. App. LEXIS 162 ( 1884 )

White, Presiding Judge.

Objections urged to the sufficiency of the appearance bond are not maintainable. The recitals of the bond show that appellant was committed by the examining court upon a charge of “theft of property of value of over twenty dollars;” the conditions in the bond named the offense simply as “ theft.” There was no inconsistency or variance between the recitals and the condition, and the condition certainly named an offense against the law, and sufficiently so to apprise the defendant of what he was called upon and expected to appear and answer to.

A judgment final upon a forfeited bond can only be valid when predicated upon a valid judgment nisi. The judgment nisi is the judicial declaration of the forfeiture of the bond. The statute prescribes not only the mode and manner, but provides the very terms or words in which this declaration must be made. (Code Crim. Proc., Art. 441.) “ The statute uses the words ‘ which judgment shall state,’ etc., showing that the statement is essential and that the requirement is mandatory.” (Collins v. The State, 12 Texas Ct. App., 356.) Judgment nisi must state that the same will be made final unless good cause be shown at the next term of the court why the defendant did not appear. (Id; McWhorter v. The State, 14 Texas Ct. App., 239; Addison v. The State, Id., 568.)

This objection to the judgment nisi was not made by appellants in their assignment of errors preparatory to this appeal. Is it fundamental error which will be considered on appeal when it has not been assigned as error? We are of opinion that it is. There can be no good, valid or binding judgment final unless there has first been a valid judgment nisi. A final judgment upon a fatally defective judgment nisi, which is the foundation for the former, is entitled to no more consideration than one rendered without any judgment nisi at all. In the one as in the other case the judgment final would be void, and a party can avail himself of the invalidity or nullity of the judgment nisi in any proceeding where it is sought to establish final liability or to hold him liable on account of such void judgment.

Because the judgment nisi upon which the final judgment in this case is based is fatally defective and invalid, the judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered June 27, 1884.