Saunders v. State

217 S.W. 949, 86 Tex. Crim. 464, 1920 Tex. Crim. App. LEXIS 17

• Court: Court of Criminal Appeals of Texas
• Decided: January 14, 1920
• Docket: No. 5602.
• Status: Published

Opinion

LATTIMORE, Judge.

—Plaintiffs in error in this case, bring before us the action of the District Court of Cooke County, Texas, in rendering final judgment against them as the sureties upon the bail bond of one H. B. Porter.

Plaintiffs in error were sureties upon the bond of said Porter, and upon his failure to appear, judgment nisi was entered, and scire facias ordered for these plaintffs. The officer’s return upon said scire facias, and upon which the judgment final seems to have been rendered, is insufficient. Said return is as follows:

“Came to hand the 20th day of January, 1919, at-o’clock— ■-M, and executed March 29, 1919, by delivering to Dan Skeans in person a true copy of this writ. ’ ’

“(Signed) Tom Ford, Sheriff Cooke County, Texas.”

It is apparent from an inspection of this return that the plaintiffs in error, who were companion sureties of Mr. Skeans, do not appear therefrom to have been served. Our statute requires the service of a scire facias upon the sureties in the same manner as is required for service of citations in civil actions, and it has been held by this Court that a judgment by default will not be sustained unless the return shows service on each of the defendants in person, of a true copy of the writ, giving the date and place of service. Harryman v. State, 57 Texas Crim. Rep., 204; Art. 492, Vernon’s C. C. P.

The judgment of the trial court against plaintiffs in error, George A. Beck, Dan Skeans, and Owen Saunders, is reversed and remanded for proper service, and a new trial.

Reversed and remanded..