Finley v. State , 89 Tex. Crim. 224 ( 1921 )

L.J. Hancock was under indictment in Cooke County for the fraudulent disposition of mortgaged property, and entered into bond with the appellants herein, A.Q. Finley and A.H. Hancock as sureties. When the case was called for trial the defendant failed to appear; bond was forfeited and judgment nisi rendered; scirefacias writ was served on the sureties, and bears the following return by the sheriff: "Came to hand the 15th day of June, 1920, at 5 o'clock P.M.; executed 18th October, 1920, by delivering to A.Q. Finley and A.H. Hancock in person a true copy of this writ."

At the next term of court judgment final by default was rendered. The sureties are seeking to have the matter reviewed by writ of error proceeding. Petition for writ of error was filed in the District Court of Cooke County on February 17, 1921, and the transcript is on file in this court within the 90 days required by the rules of the Supreme Court in Civil Cases, and briefs have been filed both in this court and the court below. Plaintiffs in error have brought themselves within the rules laid down in case of Ayers v. State, 66 Tex.Crim. Rep., 146 S.W. Rep., 171. Under Arts. 960, 961 and 962, Vernon's C.C.P. the sureties may bring the case to this court for review, either by direct appeal, or by writ of error. Complaints are made as to the form of the judgment nisi, and final judgment, but we do not discuss them, merely calling attention to the criticism in order that the defects may be corrected or avoided in subsequent proceedings.

The first assignment is that the court below erred in rendering final judgment because it does not appear from the officer's return that the sureties were each served with copy of the scirefacias writ. The assistant attorney general properly confesses error. Art. 492, Vernon's C.C.P.; Fulton v. State, 14 Texas Crim. App., 32, where the return is almost an exact duplicate of the one in the instant case: Couch v. State, 57 Tex. Crim. 134; Harryman v. State, 57 Tex.Crim. Rep.; Mansfield v. Security Trust Co., 175 S.W. Rep., 771; Kellam v. Trail, 185 S.W. Rep., 988; Holliday v. Steele, 65 Tex. 388.

By all the foregoing authorities and many others which could be cited, the service was insufficient to support a judgment by default, and the judgment of the trial court must be reversed, and the cause remanded.

Reversed and remanded.