Savage v. State

148 S.W. 584, 67 Tex. Crim. 360, 1912 Tex. Crim. App. LEXIS 436

• Court: Court of Criminal Appeals of Texas
• Decided: June 5, 1912
• Docket: No. 1909.
• Status: Published

Opinions

PRENDERGAST, Judge

—This is a certificate of affirmance sought by the State against the sureties on the bail bond of Wade Collier.

The certificate of affirmance is in strict accordance and meets all of the requirement's of article 1016 Revised Civil Statutes of Texas. It includes the appeal bond which is a supersedeas bond given by appellants and their sureties on appeal from the final judgment in the lower court.

It shows that on March 25, 1910, said Collier, as principal, and the appellants, as sureties, entered into a bail bond payable to the State in the sum of $750, conditioned as required by law for the appearance of tlieir principal, Collier, at the term of the court next ensuing after the execution of said bond. That the principal failed to appear and a proper judgment nisi was rendered against him and the appellants as sureties. That they were properly cited to appear by proper citation and service thereon on the appellants at the next term after the said forfeiture. That they failed to appear and judgment by default was rendered against them; that they afterwards sought, during the term of court at which the judgment was made final to have the said final judgment set aside. On what grounds, the record does not disclose, but the court, after hearing it, refused to set it aside and that they thereupon gave the proper notice of appeal and perfected their appeal by giving a supersedeas bond and filing the same in the lower court on October 31, 1911. The term of court at which the final judgment was rendered and entered and the notice of appeal given convened on September 25, 1911, and adjourned October 21, 1911.

The certificate shows that all the articles of our Code of Criminal Procedure, 488 to 502, inclusive have been fully and strictly complied with.

Article 497, Code Criminal Procedure, requires that when a bail bond has been forfeited the ease shall be docketed upon the civil docket in the name of the State as plaintiff, and the principal and sureties as defendant, “and the proceedings had therein shall be governed by the same rules governing other civil actions.” Both the Supreme Court and this court have repeatedly and uniformly held proceedings in such cases, as the statute requires, shall be governed by the same rules as other civil actions. See decisions cited under said article 497, Code Criminal Procedure, and White’s. Ann. Code Criminal Procedure, section 437.

Article 1387, Revised Civil Statutes, provides that when proper notice of appeal has been given, as in this case, and an appeal or supersedeas bond given within twenty da}rs after the adjournment of court, that the appeal is perfected; and article 1015 requires that" the transcript shall be filed in the Appellate Court within ninety days from the perfecting of the appeal. The ninety days’ time within which the transcript on appeal should have been filed in this court expired on January 29, 1912. No transcript has yet been filed in this case. The certificate for affirmance was filed in May, 1912, more than ninety days after the time for the filing of the record herein had expired.

This cause will, therefore, be affirmed against the appellants and the sureties on their supersedeas bond and the clerk will so enter the order.

Affirmed.