Douglass v. State , 26 Tex. Ct. App. 248 ( 1888 )

Willson, Judge.

The bail bond obligates the principal to appear “at the next term of the district court of Kerr county, Texas, at the court house in the town of Kerrville, on the eighth Monday after the first Monday in March, it being May 2, 1887.” At the time specified a legal term of said court could not be held, and no term was then held, hut on the ninth day of May, that being the ninth Monday after the first Monday in March, 1887, a legal term of said court was held, at which term said bail bond was declared forfeited.

In answer to the citation issued upon the judgment nisi, defendants attacked the validity of the proceeding because the time stated in the bond for the appearance of the principal was a time when no legal term of said court could be held. This objection was overruled, and judgment final was rendered upon said judgment nisi.

We are of the opinion that the whole proceeding is erroneous, and that the bail bond is a nullity. If the bond had merely stated that the principal should appear “before the district court of Kerr county, Texas, at its next regular term, to be held at,” etc., it would have been sufficient; but,- having specified the exact time when he was bound to appear, and that time being one at which a legal term of said court could not be held, renders the bond fatally defective. (Burnett v. The State, 18 Texas Ct. App., 283; Thomas v. The State, 12 Texas Ct. App., 417; Thomas v. The State, 13 Texas Ct. App., 496.)

Because of the fatal defect in the bail bond above mentioned, the judgment is reversed and the proceeding dismissed.

Reversed and dismissed.

This opinion was delivered at the Austin branch of the court on June 20, 1888, but a motion for rehearing being filed by the Assistant Attorney General, the same was taken under advisement and transferred to Tyler, where it was. dlsjMmd of in. the opinion that follows. •