Lawton v. State

5 Tex. 272

• Court: Texas Supreme Court
• Decided: December 15, 1849
• Status: Published

Opinion

Wheeler, J.

It is unnecessary to notice particularly the several objections urged for a reversal of the judgment. They are either not supported by the record or not of a character to require to be severally considered. A scire facias, though a judicial writ, is yet so far in the nature of an original that the defendant may plead to it, and it is in that respect considered as an action. (Bac. Abr., Scire Facias; 3 Toml. L. D., 426.) It is in law an action, and in tlie nature of a new original. (1 Shep. R., 36; 5 Pike R., 265.)

Tile scire facias in the present case is founded on an obligation of record. It recites the recognizance and the proceedings upon it; it contains all the essential requisites of a petition and citation; and appears to be in all respects regular and legal. (Note 50.)

The judgment is that the State of Texas recover of the defendants the sum of six hundred dollars, “the amount specified in their bond entered into before Edward West, sheriff,” &c. This is, it is true, a misdescription of the recognizance. It was not entered into before the sheriff, but before a justice of the peace. This description or recitation is doubtless a mistake of the clerk in entering the judgment. The recital, however, was not necessary, is mere surplusage, and does not affect the validity of the judgment, which is otherwise complete. The judgment is for a sum certain, and the recognizance on which it is rendered is correctly recited in the scire facias. The right of the State to maintain the action is placed beyond a question by the Constitution of the State. (Art. 13, sec. 2.)

Judgment affirmed.