Baker v. State , 23 Tex. Ct. App. 657 ( 1887 )

Hurt, Judge.

This is an appeal from a judgment final upon a forfeited bail bond. Appellants, the sureties in the bond, set up in their answer that their principal was prevented by sickness from making his appearance, and, further, that before the entry of the final judgment he appeared and stood trial upon the charge.

It was testified by members of the family of the principal in the bond, and also by one other, that this principal was confined to his room and bed by sickness during the entire term at which the forfeiture was. taken. To controvert this, the testimony of a physician who had been called to the sick man was introduced. This witness fails to fix the time at which the visit was made, more definitely than to say it was some time during the spring of 1885; therefore his testimony that he was not sick when he saw him does not controvert the testimony given that he was sick in March of that year, the month in which the forfeiture was taken. Moreover, the physician’s testimony shows that his opinion was made up without proper examination of the patient.

We are, therefore, of opinion that the judgment is not only against the preponderance of the evidence, but against all the evidence, there being no testimony that the principal in the bond was not sick during the term at which the forfeiture was taken.

The judgment is reversed and the cause remanded.

Reversed and remanded.