Horn v. State

3 Tex. 190

• Court: Texas Supreme Court
• Decided: December 15, 1848
• Status: Published

Opinion

Opinion of the court by

Lipscomb, Justice.

This was a proceeding on an indictment found by tbe grand jury of Lamar county against James W. Harrison, for retailing spirituous liquors without license. A capias was sued out against Harrison, to compel bis appearance to answer to tbe indictment. He was arrested on tbe capias, and entered into' bond for his appearance at the succeeding term of the court, with Berry Horn and Thomas E. Wesson, in the penalty of two hundred dollars. This bond was forfeited, and a judgment nisi entered against the principal and bis sureties, for the penalty of two hundred dollars, and a scire facias issued to the-parties to show cause why the judgment should not be made final. lío canse being shown, the judgment was made final, and the cause has been brought into this court by writ of error.

We can perceive no error in the proceedings. They have been conducted with rather more than usual formality. The judgment nisi, on the first default, seems to have been substantially entered. The scire fcoeias is not as formal as that process is usually found in common law precedents, but it is believed-to be good in substance, and calculated to give notice to the defendants of the judgment nisi, and of the grounds on which, it was entered, to enable them to make their defense, if any they had. 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 very evident that nothing more than a mere notice was intended. [Boon vs. Roberts, 1 Texas R. 147.] A notice to the party of what has been done, and for his appearance to show cause why the conditional judgment should not be made final, is all that can be required. In the ease before us, only one of the parties sued out the writ of error and gave bond. The judgment as to the others is not before us. We can only affirm the judgment against the plaintiff in error, Benjamin Horn, and his sureties.