General Bonding & Casualty Ins. v. State

165 S.W. 615, 73 Tex. Crim. 649, 1913 Tex. Crim. App. LEXIS 683

• Court: Court of Criminal Appeals of Texas
• Decided: May 28, 1913
• Docket: No. 2051.
• Status: Published

Opinions

HAEPEE, Judge.

In this case it appears that one Henry Jackson entered into a bail bond to make his personal appearance before the Criminal District Court of Dallas County, the bond reciting that, “Whereas, the above bounden Henry Jackson stands legally charged in the Criminal District Court of Dallas County with the offense of a felony against the peace and dignity of the State, How the condition of the above bond is such, that if the above bounden Henry Jackson shall make his personal appearance as required by law, before the Honorable Criminal District Court of Dallas County, Texas, at the present term thereof at the courthouse in the City of Dallas in the county and State aforesaid, instanter, and there remain from day to day and term to term of said court. And not depart until discharged by due course of law, then and there to answer said above described charge, then jn this case, the above bond to be null and void, otherwise to be and remain in full force and effect.” This bond was dated October 31, 1911, and thereafter this cause was transferred to District Court Ho. 3, in Dallas County, Texas, and on March 18, 1913, the defendant failing to make his appearance, the bond was declared forfeited, and citation ordered issued on the judgment nisi entered on the bond. The citation was issued on the 19th day of March, 1913, and was served on the 30th day of March, 1913, the said citation reading as follows:

“Whereas, in a certain criminal cause pending in the Criminal District Court Ho. 3 of Dallas County, Texas, entitled, The State of Texas v. Henry Jackson, No. 134, wherein the said Henry Jackson is charged by indictment with the offense of murder, on the 31st day of October, A. D. 1911, the said defendant, Henry Jackson, did enter into a bond with the General Bonding & Casualty Ins. Co. as his surety in the penal sum of fifteen hundred dollars, conditioned that the said Henry Jackson would make his personal appearance before the Criminal District Court of Dallas County, Texas, to answer said indictment, and there to remain from day to day and from term to term of said court until legally discharged; and whereas, said cause has been -transferred to the Criminal District Court Ho. 3 of said county, and the said Henry Jackson did, on the 18th day of March, A. D. 1913, when the said cause was called for trial in said court, fail to make his personal appearance before said court to answer the said accusation, whereupon his name was, by order of the court, called distinctly, at the courthouse door, and the said Henry Jackson not having appeared within a reasonable time after such call was made, it was considered, adjudged and decreed by the court, that the said bond be declared forfeited, and that the State of Texas do have and recover of and from the said Henry Jackson, as principal and of and from the said General Bonding & Casualty Ins. Co. as his surety the sum of fifteen hundred dollars, and it was ordered, adjudged and decreed by the court that the said judgment would be made final, unless good cause be shown, at the next term of the court, why the defendant, Henry Jackson, did not appear.

“This is therefore to command you, that you summ&n the said Henry Jackson, principal, and the General Bonding & Casualty Ins. Co., surety on said bond to be and appear before the next term of the Criminal District Court Ho. 2 of Dallas County, Texas, to be begun and holden at the courthouse in the town of Dallas on that 1st day of April, A. D. 1913, and show cause why the forfeiture of said bond should not be made final.

“Herein fail not, but have you then and there this writ, with your return thereon, showing how you have executed the same.”

Thereafter on the 1st day of April, 1913, the General Bonding & Casualty Ins. Co. filed an answer, first demurring to “plaintiff’s petition and says that the matters and things therein plead, are insufficient in law,” praying the judgment of the court, and then files a general denial, and says that this defendant “denies each and every allegation in plaintiff’s petition contained, and demands strict proof thereof.” This is all the answer filed.

When the case was called for trial, the plaintiff dismissed as to Henry Jackson, the principal in the bond, and to the action of the court in permitting the State to dismiss as to Jackson the'defendant reserved a bill of exceptions, on the ground that it was not shown that said defendant resided beyond the limits of the State, or that his residence was unknown, or that he was dead, or actually or notoriously insolvent, etc. In approving the bill the court does so with this qualificaton: “The record shows that Jackson was a refugee from justice and that he could not be found.” Having accepted the bill as thus qualified, the appellant is bound by the recitations of the qualification. (Blain v. State, 34 Texas Crim. Rep., 448; Hardy v. State, 31 Texas Crim. Rep., 289; Levine v. State, 35 Texas Crim. Rep., 647; Brown v. State, 32 Texas Crim. Rep., 119; Boyett v. State, 2 Texas Crim. App., 93.) This has been the unbroken rule in this court, and as qualified by the court it is shown that it was impossible to get service on the principal named in the bond, as he was a refugee from justice. Hnder these circumstances it has been decided, that a dismissal as to the principal would not be improper, and would not prevent" a judgment against the surety. In an early case, when the Supreme Court had jurisdiction in criminal cases, that court, Judge Wheeler rendering the decision in Gay v. State, 20 Texas, 504, held: “A suit on a forfeited recognizance, conditioned for a party’s appearance to answer to an indictment, it has been held, is not a civil action. Commonwealth v. The County Commissioner, 8 Serg. & B., 151. It is, it is said, of a criminal nature, ‘an instrument to. coerce the appearance of the accused to take his trial—a power incident to every criminal court; a power to commit to prison, to deliver on the recognizance into the custody of the bail; these manucaptors being his jailers, and he is constantly in a state of commitment. Though the action is not directly to punish the offender, yet it partakes of punishment for an offense against the State, and is not in the nature of a violation of a contract. Besides, a recognizance is a matter of record, and when forfeited, it is in the nature, in some respects, of d judgment of record/ Id., 154. It is an obligation of record; and differs from another bond in this, that it is-the acknowledgment of a debt upon record. 5 Tex., 271; 2 Bl. Com., 341. Such being the nature of a recognizance, the statutory provision which forbids the taking of judgment against the sureties, after a discontinuance as to the principal in .a civil suit upon a contract, is not applicable to this proceeding. Besides, in a recognizance the relation of principal and surety does not exist as in other bonds or contracts. The surety differs from bail in this, that the latter actually has, or is by law presumed to have, the custody of his principal, while the former has no control over him. The bail may surrender his principal in discharge of his obligation; the surety can not discharge himself by such surrender. The undertaking of the bail is an original undertaking for the appearance of his principal, to answer to the indictment; and hence, if he does not have his principal in court according to his undertaking, he forfeits his recognizance, and it becomes a debt of record, and he a principal judgment debtor, as between himself and the State. There was, therefore, no error in adjudging a forfeiture as to the bail,' although the State dismissed the proceeding as to the principal cognizor.”

The appellant cites us to the case of Brown v. State, 40 Texas, 49. In that case the judgment was reversed because there was no final disposition of the case as to one of the sureties, either of dismissal or otherwise. It is elementary that the judgment must dispose of all parties ■ to the suit by dismissal or otherwise. In this case there, was a dismissal as to the principal, for good reason shown of record as stated by the judge in his qualification of the bill. We are also referred to the case of Blalock v. State, 35 Texas, 89, in which it was held that the judgment should dispose of all parties to the suit. In this case all parties are disposed of by the judgment. We are also referred, to articles 1204, 3818 and 3819 of the Bevised Statutes. In article 1204, it is provided that the surety may be sued only in those instances, as applicable to this case, ‘‘when the residence of the principal is unknown.” If being a refugee from justice does not meet that requirement, we are unable to conceive a case which would do so. We are also referred to article 3818, in which it is provided that the surety shall not be liable unless a judgment has been rendered against his principal, except in the cases provided for in article 1204. As herein before stated, the contingencies provided for in article 1204 were shown by the record, and the qualification of the judge, to exist, therefore, we hold that the dismissal as to. the principal, he being “a. refugee from justice,” did not prevent a judgment from being rendered against the sureties on his bond. A bail bond has béenxheld and is in fact a joint and several obligation, and the dismissal as to one bondsman thereby does not prevent a judgment being entered against another who is bound thereby. (Mathena v. State, 15 Texas Crim. App., 460; Allee v. State, 28 Texas Crim. App., 531;, Thompson v. State, 34 Texas Crim. Rep., 135.)

To treat this as a civil case, we would be authorized to consider all the assignments of error assigned on the motion for new trial. The assignments read as follows: “First assignment of error. The trial court erred in dismissing said cause, over the objection of the defendant surety, the General Bonding & Casualty Insurance Company, as' to the principal defendant, Henry Jackson, because cit was not- shown by evidence, or otherwise that the principal obligor, Henry Jackson, resided beyond, the limits of the State, or in such part of the same that he could not be: reached by the ordinary process of law, or that his residence was unknown and could not be ascertained by the use of reasonable diligence, or that he was dead, or actually or notoriously insolvent.

“Second assignment of error. The judgment of the court rendered herein is contrary to the law and evidence.

“Third assignment of error. The trial court erred in overruling defendant’s motion to set aside the judgment herein rendered and grant a new trial in this cause.”

These are all the assignments of error contained in the record. If in fact the judgment nisi had stated a different date for appearance of the defendant than that stated in the bond, and appellants at the time it was offered in evidence had objected to its introduction on the ground of a variance between it and the bond as to the date of appearance of defendant, a different question would be presented. But as the judgment nisi stated no date of appearance, and the Code does not require that such date be stated either in the judgment nisi or in the scire facias no variance is apparent. None of the cases cited by appellant support his contention, but they all, and other cases, hold that the citation is, in this character of case, the petition of plaintiff, and upon it the State must rely for a judgment. If the allegations of the citation are insufficient to sustain a judgment, the cause of action fails, but if the citation is sufficient and gives defendant notice of the cause of action, then the same is good as against a general demurrer, and that is all that was filed in this case. Besides, the judgment nisi and citation contain all the statutory requirements.

The second assignment of error is that “the trial court erred in rendering final judgment upon the judgment nisi herein, because said judgment nisi as entered of record is not such a judgment that the State of Texas can recover from the surety the amount of money for which it was bound. The judgment nisi reads as follows:

“This day this cause was called for trial, and thereupon came the State of Texas by her county attorney, but the defendant, Henry Jaekson, failed to appear and answer in this behalf and thereupon his name was called distinctly at the door of the courthouse, and a reasonable time given him after such call was made in which to appear, yet the said defendant came not, but wholly made, default; and it appearing to the court that the defendant, Henry Jackson, as principal, together with General Bonding & Casualty Ins. Co. as surety, did, on, towit: the 21st day of October, A. D. 1911, enter into a bond payable to the State of Texas, in the penal sum of fifteen hundred dollars, conditioned that the defendant, as principal, should well and- truly make his personal appearance before the Honorable Criminal District Court Ho. 2, of Dallas County, Texas, at the courthouse of said county, in the City of Dallas on the.....•.....day of........, 191..,................and there remain from day to day and term to term of said court, until discharged by due course of law, then and there to answer the State of Texas upon a charge by indictment therein filed, accusing him of the offense of murder.

“It is therefore considered by the court, that the State is entitled to a forfeiture of said bond, and it is ordered, adjudged and decreed by the court, that the State of Texas do have and recover of and from the said Henry Jackson as principal, the sum of fifteen hundred dollars; and in like manner that the State of Texas do have and recover of and from the said General Bonding & Casualty Ins. Co., as sureties, the sum of fifteen hundred dollars each, and that this judgment will be made final unless good cause be shown at the next term of this court why said defendant did not appear.”

It is seen that the-assignment is not well taken, as are neither of the propositions thereunder stated.

. The third assignment of error reads as follows: “The trial court erred in not sustaining the general demurrer to plaintiff’s petition, because said petition does not allege facts constituting a cause of action, in that it does not name the court in which the alleged forfeiture of the bond was taken.” By reading the citation hereinbefore copied it will be seen that it does name the court, and that defendant being called, did not make his appearance. The allegation that he failed to appear before “said court” is hypercritical. The citation had theretofore named the court before which defendant was to appear.

' The fourth assignment is that the court erred in dismissing as to the principal in the bond. This has been heretofore discussed herein.

The only other proposition is that the court erred in overruling appellant’s motion for a new trial, because the judgment is against the law and the evidence. The evidence shows that Jackson entered into a bond for his appéarance before the court, and that appellant was surety on the bond. The bond is drawn in form frequently approved by this court, and was conditioned for his appearance instanter, and from -day to day thereafter upon a charge legally presented; that he thereafter failed to appear, and judgment nisi was ordered entered. In entering the judgment nisi, as heretofore herein shown, the clerk failed to enter the date of appearance, and the condition that he was thereafter to appear from day to day until said cause was disposed of, but the record clearly shows that Jackson did enter into a bond, conditioned for his appearance, with appellant as surety thereon, and thereafter when called, failed to appear. Under such circumstances does the failure to state in the judgment nisi when the appearance was to be made render it fatally defective? The judgment shows that the bond was entered into on the 21st day of October, 1911, and Jackson made default on March 18, 1912, when his case was called for trial. While it is true that this court has held that if the nisi judgment is not a valid judgment, the whole proceedings must fail. This is discussed by Judge White in Watkins v. State, 16 Texas Crim. App., 646, and authorities cited, but it is there stated, to render the judgment invalid, it must 'be lacking in some statutory requirement. In this case the judgment is in compliance with the terms of the Code, and meets all the requirements there made. (Art. 477, Code Criminal Procedure.) While we think it would be better to name the date of appearance in the judgment nisi, as well as the date of the bond, yet for us to hold that allegation essential to a judgment nisi would be for us to add" to the Code and make requirements not there made. Article 489 (477) of the Code of Criminal Procedure reads:

“Recognizances and bail bonds are forfeited in the following manner: The name of the defendant shall be called distinctly at the door of the courthouse, and if the defendant does not appear within a reasonable time after such call is made, judgment shall be entered that the State of Texas recover of the defendant the amount of money in which he is bound, and of his sureties the amount of money in which they are respectfully bound, which judgment shall state that the same will be made final, unless good cause be shown at the next term of the court why the defendant did not appear.”

In Taylor v. State, 21 Texas, 499, it is held that a failure to appear is a forfeiture of the bond, and the judgment nisi is but a declaration of record of the forfeiture. The Code also provides for the issuance of citation on a forfeited bail bond, and the requisites of the citation. It is said a citation shall be sufficient if it contains the following requisites: “1. It shall run Tn the name of the State of Texas.’ 2. It shall be directed to the sheriff or any constable of the county where the surety resides or is to be found. 3. It shall state the name of the principal in such recognizance or bail bond and the names of his sureties. 4. It. shall state the date of such recognizance or bail bond and the offense with which the principal is charged. 5. It shall state that such recognizance or bail bond has been declared forfeited, naming the court before which the forfeiture was taken, the time when taken, and the amount for which it was taken against each party thereto. 6. It shall notify the surety to appear at the next term of the court and show cause why the forfeiture shall not be made final. 7. It shall be signed and attested officially by the court or clerk issuing the same.”

By reading these articles of the Code and the citation and judgment hereinbefore copied, it is seen that all requisites of the Code were fully complied with in entering the judgment, and in the issuance of the citation thereon.1 It also appears from the record that the sureties on the bond appeared, and offered no defense other than a general denial, and a demurrer to the sufficiency of the pleading. The general denial was met by the introduction of the bond in evidence, and we think the pleadings were good as against a general demurrer—all that was interposed.

The contention is that as there was but one surety, the use of the word "each” in the judgment nisi invalidates it, because it renders it uncertain. The word might be said to apply to Jaekson and his surety, and if so, it is provided the judgment shall so read. But if the language does not authorize such construction, then the word "each” would not invalidate the judgment when only one surety was named; it would and should be treated as surplusage.

None of the cases cited by appellant sustain his contention in this case. They hold, and correctly so, that the citation—judgment nisi must comply with all the statutory requirements. In this instance they are complied with, and the defect pointed out, if defect it be, is not such an one as to render the judgment nisi void.

The judgment is affirmed.

Affirmed.