13 Tex. Ct. App. 555 | Tex. App. | 1883
This is a writ of error sued out by appellants to revise the action of the District Court of Bowie county in rendering a final judgment on a forfeited bail bond. A motion is made by the Assistant Attorney General to dismiss the writ of error upon two grounds; because, to.-wit:
“1. This cause is a civil suit and the Court of Appeals has no appellate jurisdiction in civil cases tried in the district court.
“2. If this cause is a criminal case, then the Court of Appeals has no jurisdiction to revise a criminal case by writ of error, but only by appeal.”
After the organization of the Court of Appeals under our present State Constitution the question as to whether scire facias cases on forfeited bail bonds and recognizances were and should be treate 1 as civil or criminal causes came up for adjudication both in the Supreme Court and the Court of Appeals, and was most ably and elaborately argued in both courts, the questions being the ones substantially as here presented. In determining these questions no written opinion was delivered in either court, but a majority of the judges in each court were of-opinion that
Still, notwithstanding this manifest intention to characterize and treat them as civil cases, this court, since the revision, has declined to change the ruling originally held by the Supreme and by this court, and has invariably held them to be in character criminal cases, subject, however, in practice and procedure to the same rules as govern civil cases. (State v. Norvell, 53 Texas, 427; State v. Ward, 9 Texas Ct. App., 462.)
If the question was an original one, it might be that we would take a different view from the conclusions arrived at when the question was first before the courts. As it is, the practice is now so well settled in this State that we do not believe it to be the part of wisdom or sound policy to interfere with or change it. Such cases will still be considered criminal in character, but in all proceedings after judgment nisi and issuance of scire ■facias liable, unless where otherwise expressly provided by statute, to be governed in practice by the same rules as obtain in civil cases.
The second ground of the motion is that a writ of error does not lie in such cases, because they are criminal. In addition to the reasons airead} given above for not interfering with the practice now so long and so well settled, we might go further, if necessary, and say that there is nothing in the constitution of the State inhibiting the Legislature from providing such a mode of bringing up for revision cases of this character, even though they are held to be criminal. A writ of error, as recognized under our laws, is only another mode of bringing up the cause for revision upon appeal (Luckett v. Townsend, 3 Texas, 119; Cheek v. Rogers, 1 Texas, 440), and this is the ground upon which it has been held that the State is not entitled to a writ of error in such cases, though such mode is provided in her behalf also by the statute. (Code Crim. Proc., Arts. 891, 892.) A writ
We are of opinion that this court has jurisdiction to hear and determine the case as here brought up by the writ of error, and the motion to dismiss is therefore overruled.
Looking to the record as to the final disposition of the case, we find that the judgment nisi is not in conformity with the requirements of the law. (Code Crim. Proc., Art. 441.) “To be valid, a judgment nisi must state that the same will be made final unless good cause be shown at the next term of court why the defendant did not appear.” (Collins v. The State, 12 Texas Ct. App., 356.) This is not stated in the judgment nisi.
Other questions are raised, but they are not likely to come up upon another trial, and therefore are not discussed. Because there was no valid judgment nisi taken, the judgment final is reversed and the cause remanded for a new trial.
Reversed and remanded.
Opinion delivered March 17, 1883.