Glover v. State

346 S.W.2d 121, 171 Tex. Crim. 156, 1961 Tex. Crim. App. LEXIS 4375

• Court: Court of Criminal Appeals of Texas
• Decided: March 15, 1961
• Docket: 33035
• Status: Published

Opinions

BELCHER, Judge.

This is an appeal by Jimmy Martin, surety on the habeas corpus bond of Charles Henry Glover, from the final judgment of the County Criminal Court No. 3 of Dallas County. Another person whose name appeared on the bond as surety was discharged from liability by the court upon the trial.

Judgment nisi was entered May 26, 1960. On July 25, 1960 Jimmy Martin, as surety, signed an instrument which recited that he waived the issuance and service upon him of the scire facias and entered his appearance in said cause for all purpose. This waiver was filed July 25, 1960.

Appellant filed an amended answer October 21, but therein he did not deny the execution by him or by his authority of the bond. He was present on the trial and participated as a party and as an attorney. The trial was had and the final judgment entered October 21, 1960.

To raise the issue that the appellant as surety did not sign the bond, the answer must contain an affirmative verified plea of non est factum. Rule 93, T.R.C.P.; 8 Tex. Jur. 2d 208, Sec. 83; Nelson et al v. State, 44 Tex. Cr. R. 595, 73 S.W. 398.

In his motion for new trial, the appellant for the first time alleges that he did not sign the bond and upon the hearing thereon, he testified that he did not sign the bond, but would have authorized it if he had been called as he had done before.

A litigant is not permitted during a trial on the merits to remain silent as to affirmative defenses known to him, and then when an adverse result is reached, on motion for new trial complain because of his own neglect. 31 Tex. Jur. 14, 17, Secs. 10, 13; Rule 94, T.T.C.P.; Thomasson v. Davis, 74 S.W. 2d 557, writ dismissed.

Appellant’s waiver of service of citation, his appearance and participation in the trial on the merits, followed by his denial for the first time in his motion for new trial that he signed the bond, but without stating any excuse or justification for failing to raise such issue before, does not show any error in the refusal of the motion.

Judgment is affirmed.

Opinion approved by the Court.