J. F. Collins v. State

White, Presiding Judge. On a former appeal the judgment* final in this case was reversed because the judgment nisi upon which it was based was invalid, in that it did not conform to the express requirements of the four hundred and forty-first Article of the Code of Criminal Procedure, regulating the requisites of such judgments. (Collins v. The State, 12 Texas Ct. App., 356.) After the case was remanded from this to the district court for a new trial, the district attorney caused new citations to issue to the two sureties, service of which was had upon one, and service of the other was accepted by this appellant. Subsequently the district attorney filed a motion to amend the original judgment nisi by inserting the words prescribed in Article 441 Code of Criminal Procedure, which this court had held absolutely necessary to the validity of the judgment. Appellant accepted service of this motion, but no service of said motion was ever had upon the principal in the recognizance (Tinker). To this motion appellant submitted the following exceptions, viz: “First, said motion is in the nature of a writ of error coram nobis for the correction of matters of fact in the judgment, while it appears from the face of said motion that the correction or amendment sought to be made is a matter of law, and this court has no jurisdiction to correct at a subsequent term the judicial errors of a former term, but the proper remedy for such a correction is in a revisory or appellate tribunal. Second, because said motion had not been served on W. C. Tinker, the principal obligor in the bail bond, and he had no notice of it; and, third, because the Court of Appeals, in the case of Collins v. The State (12 Texas Ct. App., 356), have decided that this very judgment nisi which the motion seeks to amend is invalid, null and void, and therefore there is now no such valid and legal judgment nisi in this case as this court can amend or correct.” These exceptions were overruled, and, after a hearing of the evidence on the motion, the same was sustained and granted, and the judgment nisi amended so as' to conform to the requirements of the law. In the errors complained of in this ruling, two questions arise: first, could the judgment nisi be amended as was done? and, second, if so, could such amendment be made without notice to Tinker, the principal obligor in the bail bond? As we understand the rule, it is that a court “has the authority to amend a judgment after the expiration of the term at which it was rendered, in order to correct clerical mistakes or errors, or to add, an [279] omitted clause necessary to give it effect, when there is anything in the judgment by ivhich to amend.” (Lorance v. Marchbanks, decided by the Supreme Court June 12, 1883, 2 vol. Texas Law Rev., p. 44, citing Chambers v. Hodges, 3 Texas, 517; Trammell v. Trammell, 25 Texas Supp., 261.) “The rule,” says Mr. Freeman, “that the record admits of no alteration after the term is obsolete. * * * All courts have the inherent power to correct clerical errors at a-ny time, and to make the judgment entry correspond with the judgment rendered. This power exists in criminal prosecutions as well as in civil cases.” (Freeman on Judgments, 3 ed., sec. 71.) Again, the same author says: “Where there is nothing to show- that the judgment entered is not the judgment ordered by the court, it cannot be amended. On the one hand, it is certain that the proceedings for the amendment of judgments ought never to be permitted to become revisory or appellate in their nature, ought never to be the means of modifying or enlarging the judgment or the judgment record, so that it shall express something which the court did not pronounce, even although the proposed amendment embraces matter which ought clearly to have been so pronounced. On the other hand, there are many cases in which it so clearly appears that the judgment as entered is not the sentence which the law ought to have pronounced upon the facts as established by the record, that the court acts upon the presumption that the error is a clerical misprision rather than a judicial blunder, and sets the judgment, or, rather, the judgment entry, right by an amendment nunc pro time.” (Freeman on Judg., sec. 70.) In the case under consideration, the object of the proceedings had was to forfeit the bail bond. IIow this is to be done is regulated by statute. All the proceedings appear to have been regular and in conformity with the statute, up to the clerical act of entering of the judgment nisi; and even that entry is correct, except that it omitted to recite that “the judgment” already rendered “will be made final unless good cause be shown at the next term of the court why the defendant did not appear.” Without this recital, the judgment was imperfect and invalid in law. To amend the judgment by adding these words would not be revising the judgment; neither would it be enlarging the judgment so as to express something which the court did not pronounce. The amendment was clearly one which was necessary to give the judgment effect, and was simply to supply the omis [280] sion of a clause necessary to give it effect, and the judgment itself was sufficient, save this omitted clause; and this fact is manifest from an inspection of the judgment itself. The judgment, on its face, showed the omission, and, from an inspection of the judgment alone, the character of and the necessity for the amendment is apparent. The entry as made does not conform to what the court evidently intended it should be when it was ordered, and was therefore merely a clerical error, and amendable. (Freeman on Judg., sec. 72.) Under the rules above cited, we are of opinion the amendment was permissible and legally made. Was Tinker, the principal obligor, entitled to notice of the proposed amendment before it could be acted upon by the court? It is a well established rule that “ whenever an amendment of a judgment or decree is sought, notice should be given to the adverse party of the motion to amend. * * * An exception to this rule may be allowed where the amendment is made from the record alone, and the judgment as proposed to be annulled is not different from what it would have been construed to be independent of the amendment. Ho one’s rights are affected by it, as the effect of the record is not changed. All who may have consulted the record or acted upon the faith of it must be presumed to have notice of all which the proper construction of the whole record discloses; in other words, of the effect of the record.” (Freeman on Judg., sec. 72a.) Our statute requires that notice be given to the parties interested in a judgment or decree before any correction of mistakes or misrecitals in the judgment can be made by amendment. (Rev. Stats., Arts., 1354, 1355; Williams v. Nolan, 58 Texas, 708.) That is, all the parties interested in the proceedings resulting in the judgment, and who would be affected by the amendment, must have notice of the proposed amendment. (Russell v. Miller, 40 Texas, 494; Blalack v. The State, 13 Texas Ct. App., 376.) Was the principal obligor interested and concerned in, and likely to be affected by, the amendment? As rendered, the judgment nisi was invalid because not in conformity to law. It was not a good or sufficient judgment, nor such an one as would uphold and sustain a judgment final on scire facias to the sureties. True, the principal is no party to the scire facias proceedings, because the sureties alone are cited and required to show cause, if any, “ at the next term, why the defendant did not appear,” and also, why the judgment nisi should not be [281] made final. (Code Crim. Proc., Arts. 441, 442.) In these subsequent proceedings he has no direct interest, perhaps. But these whole proceedings are based upon the judgment nisi, which is a judgment in which he is a party directly at interest, because it is a declaration of forfeiture of his bond, and of the right of the State to claim the penalty of said bond as against him. As to him as well as the sureties, this declaration of forfeiture must be legal and valid in all respects, or the State cannot enforce it against him or them. The judgment must be good in law. If not good and sufficient in law, then any amendment or proposed amendment seeking to correct it and thereby make it valid, must necessarily affect him by making valid a judgment which theretofore was invalid against him. As to such a proposed amendment he is an interested and necessary party, and should have notice of it. This exception was well taken to the motion to amend, and it should have been sustained. These objections, however, might perhaps have been obviated by a new forfeiture instead of a motion to amend, Two objections were urged to the bail bond when it was offered in evidence: 1. That there was a fatal variance between the offense charged in the indictment and that named in the bond, the former charging theft of “ one certain horse,” and the latter naming the offense as theft of “ one sorrel mare.” This objection would have been good under the law as it was before the adoption of the Revised Statutes, but under these statutes (Penal Code, Art. 746), the generic term “ horse ” embraces all animals of the horse species, and there was no variance in the descriptions in the indictment and bond. 2. Alteration in the bond. From the original bond, which is sent up as part of the record for our inspection, it appears that the name of ciS. Young” had been written or signed as one of the sureties thereto, and that said name had been erased by ink lines drawn across so as to obliterate it. The objection was that the alteration was patent and material, and that it devolved upon the State to satisfactorily explain the erasure, and show that it was made under circumstances that did not affect the rights of the obligors, before said bond was admissible as evidence. This objection was well taken, and the court erred in overruling it. (Kiser et al. v. The State, 13 Texas Ct. App., 201; Heath v. The State, 14 Texas Ct. App., 213; Davis v. The State, 5 Texas Ct. App., 48.) Several other errors are assigned, but we have-pointed out [282] those we deemed tenable; and because of the errors so pointed out, the judgment is reversed and the cause remanded. jReversed and remanded. ¡ Opinion delivered May 21, 1884.