Douthit v. State

Handy, J.:

Of the various errors assigned in this cause, we consider it necessary to decide upon but one.

The judgment nisi against the plaintiff in error, appears by the record to have been rendered against him in consequence of his failure to bring into court the , body of one John W. Dou-thit, for whom he had become bail upon recognizance, and who had been charged with a felony. The scire facias issued upon this judgment, recites and shows that the plaintiff in error had become bound to bring into court the body of one Richard B. Douthit, and on his failure to do so, that the judgment sought to be enforced had been rendered. Upon this scire facias a judgment by default was rendered against the plaintiff in error, who thereupon sued out this writ of error.

It is manifest by the record that the-obligation of the plaintiff in error, as stated in the scire facias, was essentially different from that appearing by the judgment nisi, and that the scire facias was not supported by the judgment nisi. That judgment not being final until rendered so by the judgment upon the scire facias, it is competent in determining the latter judgment, to consider whether the scire facias is supported by the judgment nisi, which it is merely process to complete and render final. And if the judgment nisi and the scire facias taken as parts of the same proceeding, are insufficient to sustain the final judgment, it will be erroneous and must be reversed, though no objections were taken to the insufficiency„of the proceedings in the court below; because upon the,whole record the judgment is erroneous.

The variance between the judgment nisi and the scire facias is essential, and fatal to the scire facias and the final judgment.

The judgment is reversed and the scire facias quashed.