186 S.W. 328
BELL 
v. 
STATE.
(No. 4045.)
Court of Criminal Appeals of Texas.
April 19, 1916.
State's Rehearing Denied May 31, 1916.
        Appeal from District Court, Freestone County; A. M. Blackmon, Judge.
        Scire facias by the State against R. W. Bell. There was a judgment for plaintiff, and from the 
judgment and order denying new trial, defendant appeals. Reversed and remanded.
        R. L. Williford, of Fairfield, and Edwards, Geppert & Wroe and Boyd & Bell, all of Teague, for 
appellant. Callicutt & Johnson, of Corsicana, James MacIntosh and Lex Smith, Co. Atty., both of Fairfield, 
and C. C. McDonald, Asst. Atty. Gen., for the State.
        PRENDERGAST, P. J.
        This is an appeal by the original defendant, being the principal, in a scire facias case. The record is 
quite voluminous — entirely too much so. The material questions are few. After the transcript reached this 
court motions galore were filed in this court. Accompanying them were affidavits and original documents 
not filed in the lower court. We think it unnecessary to even state these matters.
        This court issued a certiorari to the district clerk requiring him to send up an additional transcript 
with a correct caption to this case, the minutes of the court showing the organization and impaneling of 
the grand jury which preferred the original indictment and the return and filing thereof in court, with 
which he has complied.
        Appellant has filed a motion objecting and excepting to this court considering the various original 
matters filed in this court and to that part of the clerk's return to the certiorari wherein he gives a copy of 
the minutes of the organization of the grand jury which preferred the indictment and the minutes showing 
the return to and filing of said indictment in said court.
        We have considered all the motions. We deem it unnecessary to discuss the various matters raised 
by them or any of them. We, of course, cannot, and will not, consider the said original papers not filed in 
the court
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below. We will not strike out the corrected caption, nor the minutes of the court showing the organization 
of the grand jury which found the indictment, nor the minutes showing its proper presentation and filing in 
the lower court. General Bonding Co. v. State, 73 Tex. Cr. R. 649, 165 S. W. 615. We regard none of said 
motions in this court of any controlling or material effect on the real merits of this case. All these matters 
being brushed aside, we will go to the real issues and merits.
        The record which we are authorized to consider, and do consider, clearly shows: That at the 
September term, 1913, of the district court of Freestone county a proper grand jury was duly impaneled 
and sworn, and that on September 11th it returned against appellant an indictment in three counts; the 
first charging rape upon his daughter by force, threats, etc.; the others incest with his daughter by having 
sexual intercourse with her. The indictment was defective in that it alleged that it was the grand jury of 
Limestone, and not Freestone, county acting, and the rape is charged to have been committed in 
Limestone, but the incest committed in Freestone county. That appellant was properly arrested, and gave 
on the next day a bail bond, which is in strict accordance with the statute, in the sum of $5,000, signed by 
himself and several sureties. That later, at that term, he filed a motion to quash said indictment on 
various grounds based upon the indictment stating that it was the Limestone county grand jury, and not 
the Freestone, which preferred the indictment. At the next term appellant failed to appear, and has never 
since personally appeared. Thereupon judgment nisi was rendered and entered against him and all of his 
sureties on his said bail bond. His sureties were duly cited and answered, undertaking to avoid any final 
judgment against them on various grounds, among others, that said bond was void, because based on an 
invalid indictment, and because the court had quashed that indictment on appellant's said motion to quash 
it. The appellant did not then himself file any defense whatever to said nisi judgment. At the December 
term following another judgment, which is called an interlocutory judgment, purporting to be on its face a 
final judgment against him, was rendered. That judgment was not a final judgment, because it made no 
disposition of the sureties who were parties to the cause. But one final judgment can be rendered. He still 
failed to make any defense. At the next term, on February 14, 1916, the scire facias case was again 
regularly called for trial; whereupon the state dismissed as to all of said sureties and asked a final 
judgment by default against appellant, which was then and there rendered by the court. The next day his 
attorneys, for him, filed his motion for a new trial. All these matters herein just above recited appear fully 
by appellant's said motion, which is the basis of this whole appeal. The state filed numerous demurrers to 
appellant's motion for a new trial. The court heard the matter and sustained several of the state's 
demurrers, overruled others, and entered a final judgment overruling appellant's said motion and denying 
him a new trial, to which he excepted, and gave proper notice of appeal to this court, and assigns several 
claimed errors, which, he contends, entitle him to a reversal.
        It is unnecessary to discuss severally appellant's assignments of error. We have considered them all. 
However, we will decide the material questions raised, which will have the effect to decide the whole case.
        In the last few years in several cases we have had occasion to thoroughly investigate the law 
pertaining to the forfeiture of bail bonds. Among these cases are Hodges v. State, 73 Tex. Cr. R. 638, 165 
S. W. 607, General Bonding, etc., Co. v. State, 73 Tex. Cr. R. 649, 165 S. W. 615, and Hodges v. State, 
73 Tex. Cr. R. 636, 165 S. W. 613, which were companion cases. In the Hodges Case, 73 Tex. Cr. R. 644, 
165 S. W. 607, and in other cases which is applicable here, we said:
        "Our statutes prescribing the requisites of bail bonds and recognizances, and regulating and 
prescribing the procedure for the forfeiture thereof, are so clear, plain, full, and unambiguous that they 
need no construction by this court. They construe themselves. There are so many apparent, if not real, 
conflicts in the decisions of the courts on the subject that the safest, if not the only safe, way for the lower 
courts to proceed is to follow the said statutes. Prior to recent years the tendency of the decisions of the 
court was to attach undue importance to each and every one of these proceedings, practically requiring 
that every `t' should be crossed and every `i' dotted; otherwise to hold the proceedings fatally defective 
and result in reversals. But in later years the whole trend of legislation, as well as the decisions of this 
court and the Supreme Court, is to get away from such extremely technical and unimportant matters, 
and, instead, to get to the real merits and substantial matters and intent of the Legislature in the 
enactment of the law, and decide the cases on their true and real merits, and not on purely immaterial 
technical points."
        Appellant's contention that the judgment nisi and final judgment against him are void because the 
indictment in the case in which he gave bail bond was fatally defective cannot be maintained, as has many 
times been decided by this court and other courts. It is unnecessary to discuss this question or the cases 
so declaring the law. Branch's Crim. Law, p. 67, and cases cited by him; State v. Cox, 25 Tex. 405; State 
v. Rhodius, 37 Tex. 165; State v. Angell, 37 Tex. 357; State v. Ake, 41 Tex. 166; Smalley v. State, 3 Tex. 
App. 202; Hester v. State, 15 Tex. App. 418; Jones v. State, 15 Tex. App. 82; Martin v. State, 16 Tex. 
App. 265; Lee v. State, 25 Tex. App. 331, 8 S. W. 277; Shrader v. State, 30 Tex. 387; U. S. v. Evans (C. 
C.) 2 Fed. 147; U. S. v. Reese, 4 Sawy, 629, Fed. Cas. No. 16,138; State v. Weaver, 18 Ala. 293; 
Williams v. State, 20 Ala. 63; Reeve v.
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State, 34 Ark 610; Dilly v. State, 3 Idaho (Hasb.) 285, 29 Pac. 48; Kepley v. State, 123 Ill. 367, 13 N. E. 
512; State v. Poston, 63 Mo. 521; State v. Morgan, 124 Mo. 467, 28 S. W. 17; State v. Livingston, 117 
Mo. 627, 23 S. W. 766.
        Appellant's contention that no judgment on his bail bond could be taken against him, because: (1) 
None was taken against his sureties at the same time, but, instead, the state's case against them as 
sureties was dismissed; and (2) he was not served with citation or any notice that either the judgment nisi 
or interlocutory judgment or the final judgment would be taken against him — cannot be maintained. The 
statute itself is specifically against him, as well as general principles. In the first place, it would be against 
all principles to hold that a principal in any obligation could successfully contend that no judgment could 
be rendered against him unless at the same time, in the same proceeding, a judgment should also be 
taken against his sureties. One simple illustration is sufficient. Suppose A. should execute to B. his 
promissory note for $5,000, and should get C., D., and E. to sign as his personal sureties. Upon maturity 
and failure to pay B., the payee, should sue him and his sureties on the note. Service might not be had 
upon some of the sureties, and some or all of them might be dead, or all of them insolvent, or as for that 
matter, if the owner of the note should desire no judgment against the sureties, or for any other reason 
he wanted to hold the principal alone liable, no one would contend that the principal maker of the note 
who owed it as his debt could claim that no judgment could be rendered against him, unless at the same 
time judgment should be rendered against his sureties. He would have no recourse on them whatever. 
There would be no reason why as to him they should be made parties, or a judgment should be rendered 
against them. That, in effect, is this case.
        But in this scire facias proceeding the statute itself is plain and unequivocally against him. Article 
488, C. C. P., provides that, when a defendant is bound by bail bond to appear at any term of court, and 
fails to do so on the day the criminal docket is taken up, or any subsequent day when his case comes up 
for trial, a forfeiture of "his bond shall be taken." The next article specifically provides the manner of 
taking this judgment nisi, and says, "Judgment shall be entered that the state of Texas recover of the 
defendant the amount of money in which he is bound, and of his sureties the amount of money in which 
they are respectively bound," etc., clearly requiring that a judgment shall be taken against him on his bail 
bond. That it may also be taken against his sureties would make it none the less that judgment shall be 
rendered against him. The next article prescribes that citation shall issue to the sureties only, not to the 
defendant. That article expressly states: "But it shall not be necessary to give notice to the defendant." 
The reason no notice or citation is to be issued to him, but to his sureties only, is clear and certain. He is a 
party to the whole proceeding from start to finish by his mere signing the bail bond. His sureties are not, 
unless they are cited, because the statute is to that effect. Besides, when a defendant willfully forfeits his 
bond, he is, or becomes, a fugitive, and it is contemplated in law that no citation can be served upon him, 
because he cannot be found. Then the statute prescribes that the sureties can answer at the next term 
and show cause why the defendant did not appear so as to avoid any judgment against them. Various 
things would exempt them from liability, as has many times been held by this court, which would not 
affect the defendant himself. Article 500 states what causes and no others will exonerate the defendant or 
his sureties upon the forfeiture taken. It is unnecessary to enumerate them, but in the first subdivision it 
is expressly prescribed that, if the bond be valid and binding as to the principal and one or more of his 
sureties, they shall not be exonerated from liability because of it being invalid as to another surety or 
sureties; that if it be invalid and not binding as to the principal, each of the sureties shall be exonerated 
from liability. Then it expressly enacts:
        "If it be valid and binding as to the principal, but not so as to the sureties, the principal shall not be 
exonerated, but the sureties shall be."
        The following articles then provide that if, after the sureties have been cited, they fail to answer, and 
if the defendant fails to answer within the time limit for answering, the next term of court, the court shall 
enter final judgment by default as in other civil actions. It is the law and the uniform practice that, if one 
party to an action answers, and another does not, judgment by default is entered against the defaulting 
party, and, if the answering party is then dismissed, final judgment against the defaulting party shall be 
rendered.
        The scire facias statutes were substantially complied with in every particular in this case. The 
judgment nisi against appellant was rendered March 9, 1914. He had till the next term to show cause why 
a final judgment should not be rendered against him, but he made no answer and no showing whatever 
within that time. His sureties did answer, and undertook to show good cause why judgment should not be 
rendered against them, but they did so for themselves only, not for him. Then the case went over to 
another term, and on December 20, 1915, at that term, another judgment by default was rendered 
against him. That was not final, because the sureties were not disposed of by it. He still made no answer, 
and in no way attempted to show why final judgment should
Page 331
not be rendered against him. The case went over another term of the court, and till February 14, 1916, 
when final judgment by default was rendered against him; the state at that time dismissing as to the 
sureties. He had had from March 9, 1914, to February 14, 1916, nearly two years, to answer, but filed no 
answer whatever. Then on the next day he quickly filed a motion to set aside the said final judgment 
against him.
        In his said motion he set up many grounds which he claimed entitled him to a new trial, but the only 
ground which would present any merit is that he was exonerated from liability, because the court in 
September, 1913, had granted his motion to quash, and had quashed, the indictment against him. The 
demurrers of the state in law admit the truth of that allegation, and we must take it on the face of the 
pleadings that that ground of his motion was true. The motion itself alleges that the court entered no 
judgment quashing the indictment. He in no way in his said motion gave any reason or excuse, or 
pretended to give any, why he did not set up before the final judgment was rendered against him the fact, 
if so, that the court had quashed the said indictment. Nor did he allege in any way in his said motion that 
the said judgment against him was obtained by mistake, accident, or fraud of the state, nor that it 
resulted from mistake, accident, or fraud by the state. The state's demurrers to his said motion specifically 
challenged the sufficiency of it on these grounds. It is true the state further in its answer specially denies 
that the court ever quashed the indictment or entered any order on the docket or minutes quashing it, 
and sets up as a fact that the indictment was never quashed, but in passing on the demurrers neither this 
nor the lower court can consider such allegations. This presents the only serious question in the case.
        The civil courts have clearly established the following rules by a great many decisions to this effect: 
That in order to set aside a final judgment by default two things are positively required: (1) That the 
mover has a complete defense to the plaintiff's cause of action; and (2) he must show a valid excuse for 
failure to plead his defense in time and before final judgment. See authorities collated in 11 Ency. Dig. of 
Texas Reports, p. 296 et seq., and those cited in the state's brief. On the face of appellant's motion, as 
stated, he set up what would have been a defense to any judgment against him as raised by the 
demurrers. The court sustained the state's demurrers to his motion. He did not ask leave to amend, nor 
amend, to cover the point, but, instead, it seems, relied on his pleading as it was, without attempting to 
allege any excuse whatever why he had failed to answer in time. The appellant, as shown above, had from 
March 9, 1914, to February 14, 1916, nearly two years, to file his answer in defense. He did not do so. He 
waited until after final judgment against him, and then sought to have the judgment against him set 
aside, without in any way attempting to excuse his failure to answer. And he could have done this without 
surrendering and being personally present. He could have done so, although still a fugitive from justice.
        Without any discussion of the question this writer is of the opinion that the appellant had his day in 
court, and by his failure to answer setting up his said defense he, in effect, waived it, and, not setting up 
in his said motion for a new trial any excuse for his failure to answer, that the judgment should be 
affirmed.
        But my Associates have reached the conclusion that the final judgment, under the appellant's 
allegations that the indictment had been quashed being admitted by the state's demurrers, is void, and 
that the cause should be reversed in order that the court below may try that question of fact.
        The judgment is therefore reversed, and the cause remanded.