Smith v. State

76 Miss. 728

• Court: Mississippi Supreme Court
• Decided: March 15, 1899
• Status: Published

Opinion

Wi-iitfield, J.,

delivered the opinion of the court.

As to Daniel H. Smith, Jr., the principal, the judgment is erroneous—being by default—because there was no personal service on him, nor were there, as required as an equivalent therefor by § 1396 of the code of 1892, “two writs of scire facias returned by the proper officer of the county where the bond or recognizance was entered into ‘ not found. Stafford v. State, 60 Miss., 928.

The sureties having been personally served, and having failed to appear, cannot predicate error here of a variance between the bond and the scire facias; because, in such case, the bond is “ not properly a part of the record of that proceeding, but must be brought before the court by plea of mol teil record, or other appropriate plea.” Ditto v. State, 30 Miss., at p. 128. But there is a fatal variance between the judgment nisi and the judgment final, as to the date of the judgment.

Say the court in Ditto v. State, 30 Miss., 128: “Where the scire facias is not supported in a material respect by the judgment nisi, a judgment final inconsistent with the judgment nisi, is erroneous, and, if to a party’s prejudice, must, be reversed.” To the same point, identically, is Bridges v. State, 24 Miss., 154.

Reversed and remanded.