No. 3997 | Tex. App. | May 25, 1886
This is a scire-facias case. As has been repeatedly held, the writ of scire facias serves the double purpose of a citation and a petition. Appellants answered by general denial and that their principal was sick and unable from said sickness to attend the court at the term at which the bond was forfeited. The case was tried by Anthony W. Dillard, special jiidge, without a jury. The bond was not introduced in evidence, and because of this the appellants insist that the judgment of the court is not supported by the evidence.
Appellants pleaded a general denial. This imposed upon the State the necessity of introducing in evidence the bond, it being the very foundation of the suit.
The learned judge in his conclusions of law holds that the only issue between the State and defendants was the truth of their answer pleading sickness of the principal. In this there was error; for, by virtue of the statute, the defendants in their answer may plead as many several matters, whether of law or fact, as they shall think necessary for their defense and which may be pertinent to the case, provided that they shall file them at the same time and in due order of pleading. (Art. 1262, Rev. Stat.) We understand the rule to be that the defendant may in
There was, to our minds, very satisfactory proof that the principal was unable to attend court at the time of the forfeiture. But the learned judge construes Article 456 to mean a voluntary return of the principal. The record shows that the principal was arrested and stood his trial before the judgment nisi was made final. This being the case, the judge held that, though he was ■unable to attend at the time of the forfeiture by reason of sickness, as he was arrested he did not voluntarily return, and hence his excuse of sickness could not avail.
When viewed in the light of our criminal practice, this is a monstrous doctrine. “A.” is sick, unable to attend court; his bond is forfeited; alias capias issues at once; he is re-arrested. He and his sureties plead his sickness, but, as he was arrested, their plea, though true to the letter, shall not prevail. Now the true construction of Article 456 is that, whether arrested or not, "if the principal shall attend before the judgment nisi is made final, with sufficient showing why he did not appear before the f orfeiture was taken, he is entitled to have the forfeiture set aside.
For the errors above mentioned, the judgment is reversed and the cause remanded.
Reversed and remanded.