29 Tex. Ct. App. 214 | Tex. App. | 1890
J. B. Pleasants, being indicted for the theft of a, horse and in custody upon said charge, entered into recognizance in the sum of $500, with J. B. Pleasants, Sr., and J. W. Bradshaw as his sureties-
We think the citation is sufficient. It was not essential that the citation should allege that the recognizance was entered into in open court. The allegation that a recognizance was entered into must mean that it was entered into in open court; otherwise it would not he a recognizance.
It was not error to allow the State to dismiss the suit as to the surety (Pleasants) who had not been served with citation and to render judgment against the principal and appellant. Where there are several defendants in a suit, and some of them are served with process and others are not, the plaintiff may discontinue as to those not served and proceed against those that have been served. Rev. Stats., art. 1256. This provision of the statute is applicable in this proceeding as in other civil cases. Code Crim. Proc., art. 449. To entitle the plaintiff to discontinue as to a defendant not served, the statute does not require that any diligence should have been used by him to obtain service, and we have no authority by construction to add to the statute such a requirement.
Ho error was committed in permitting the recognizance and judgment nisi to be read in evidence. The objections made to them as evidence are not substantial and were properly overruled.
We find no error in the judgment, and it is affirmed.
Affirmed.
Hurt, J., absent.
