State v. Glaevecke

Walker, J. This is a proceeding upon a forfeited recognizance, and we find the record discloses these facts: That at the Fall term of the District Court for Cameron county, for the year 1868, the District Attorney moved for final judgment against the defendant, now appellee, who resisted the motion upon the ground that the scire facias which had issued upon the judgment nisi, rendered against him at the Fall term of the court for the year 1867, was defective and void. Several exceptions, in the nature of special demurrers, were filed by the defendant, and also a denial of all the material facts, upoti which it was sought to [57] convert this inchoate into an absolute and final judgment. Upon examination of the briefs filed by counsel of appellee, vre are led to conclude, that the principal grounds of exception were to the recitals in the scire facias, and the terms of the recognizance, as it appears in the record. The recognizance is dated April 4, A. D. 1867; it binds Charles Smith, as principal, and Adolph Glaevecke, as surety, in the penal sum of five hundred dollars; and is conditioned for the appearance of said Charles Smith before . the honorable District Court, in and for the county of Cameron, from “ day to day, and from term to term, thereafter, until discharged by due course of law.” There is no error in this form of recognizance. It may have been given in term time, and intended to secure the attendance of the principal from day to day of the term, and in case he was not tried at that term of the court, to any future term. Besides, the “term” of the court is, by fiction of law, but one day, for the purpose of giving the court the opportunity of revising .and correcting judgments and decrees, if necessary, at any time during the term. The words “ from day to day ” might be rejected from the recognizance, and it will still be good. The true date of the recognizance being the fourth, of April, 1867, the recitals in the scire facias are erroneous. They set forth that at the Fall term of the court for the year 1867, the appellee as security, and Charles Smith as principal, entered into a recognizance, conditioned, etc. The recitals were unnecessary in the scire facias, if they had been correct. In the case of Horn, security for Harrison, v. The State of Texas, 8 Texas R., 190, the court, in an opinion delivered by Mr. Justice Lipscomb, say: “The common law process practice has never been adopted in our courts, although the common law terms are frequently used in our statutes. The term ‘ scire facias ’ is often used when it is evident that nothing more than á mere notice was intended. A notice to a party of what has been done, and [58] requiring him to appear and show cause why a conditional judgment should not be made final, is all that is required.” In Davidson v. The State, 20 Texas R., 655, Mr. Justice Wheeler, delivering the opinion of the court, recognizing the doctrine of the case of Horn v. The State, says that the scire facias is defective. “ It does not follow the judgment, it recites a judgment rendered on the twenty-sixth, whereas it was rendered on the twenty-fifth of the month.” The judgment of the court was reversed. The recital was material and misdescribed the judgment. It is not unlikely that the District Court intended to follow the rulings in this case. It was a case where the recitals were erroneous. The variance was considered fatal. In the ease of The State v. Wm. E. Cox, et al., 25 Texas R., 404, Mr. Justice Bell, delivering the opinion of the court, says: “ The scire facias, which issues upon the forfeiture of a recog- ■ nizance or bail bond, stands in the place of a petition, and must state the facts of which the parties are required to take notice, and which they are called upon to answer, with reasonable certainty.” We cannot adopt the language used by the court in this case; nor can we concur in the opinion that the scire facias stands in the place of a petition, nor do we think any petition necessary. There is already a conditional judgment against the defendant, to which he is privy. The scire facias is the precept of the court; the court files no petitions, and the law requires none, but it entitles the party to notice of what has been done, and commands him to appear and show cause why the court should not proceed further and make the conditional judgment final; and if he fail to appear no new judgment is entered upon this precept, but the judgment already entered is made final. If there were non-essential errors in the scire facias, they could have been set aside, or an amendment made in open court, sine mora, or amendments could have been made upon terms. The appellee was in court, answering and demurring; no injustice would' have been done him by permitting [59] the necessary amendments to he made. And considering the fact that the irregularities and informalities complained of were such as were found only in the precept of the court, we think the court erred in not ordering the amendments made, and putting the defendant to the statutory course of defense in .said actions (see Paschal’s Digest, Art. 2884); and unless he had .shown some of the grounds of defense enumerated in this article, .the,.judgment should have been made final. (See Barton v. The State, 24 Texas, 252.) The judgment of the court below is reversed and the cause remanded. Reversed and remanded.