Briggs v. State

222 S.W. 246, 87 Tex. Crim. 473, 1920 Tex. Crim. App. LEXIS 258

• Court: Court of Criminal Appeals of Texas
• Decided: April 21, 1920
• Docket: No. 5803.
• Status: Published

Opinions

LATTIMORE,Judge.

This is an appeal from a final judgment upon a forfeited bail bond, had in the Criminal District Court of Tarrant County.

M. D. Briggs was charged by indictment in said court with a felony, and upon his arrest he executed a bail bond, in the usual form, giving one Arnold Guertler, and one Prank Thomas, as sureties. Thereafter, upon the call of the case, Briggs made default, and judgment nisi was entered against him and his sureties in May, 1919, and citations duly issued for the parties defendant in said proceeding. Thereafter, no answer having been filed, in October, 1919, a final judgment was entered against said parties. On December 23, a motion for rehearing, or new trial, was filed by the appellant Guertler, in which he sets up the fact that immediately after service of said citation, he employed an attorney to represent him in said matter, and that he was not aware until December 12, 1919, nearly thirty days after the rendition thereof, that a final judgment had been entered against him, and that said attorney had' failed to file an answer, or in any way to present his defense. It is also alleged in said motion that Mr. Guertler has a meritorious defense, which he would have made had his said attorney not failed, etc., as aforesaid.

It is the rule in such cases that a sufficient excuse must be shown for failure to answer, as well as the further showing that the party sought to be charged, has a meritorious defense. We find nothing in the record which suggests any sort of an excuse or reason why the attorney employed by Mr. Guertler did not file an answer. Said attorney did not testify with regard to the matter, nor did Mr. Guertler assign any reason in his testimony for the failure on the part of such attorney. However much we may regret it, we have no right to override the authorities in such case, which seem to agree that in the absence of some showing of fraud, accident, or unavoidable cause, a default judgment of a court of competent jurisdiction will not be set aside. Martin v. Clements, 193 S. W. Rep., 437; Miller v. First State Bank, et al, 184 S. W. Rep., 614; Hester v. Baskin, 184 S. W. Rep., 726.

In order to obtain relief at our hands, it must be affirmatively, shown that the discretion of the trial court in these matters has been abused. Boyd v. Urrutia, 195 S. W. Rep., 341; Giles v. State, 65 Texas Crim. Rep., 612, 151 S. W. Rep., 1043.

We have examined the various defenses which appellant alleges he would have made if permitted. We think none of them very meritorious, and that the trial court did not abuse his discretion in this proceeding.

Finding no error in the record, the judgment is affirmed.

Affirmed.