On the original submission the Assistant Attorney General filed a motion to dismiss the appeal, based upon the idea that what purported to be a recognizance was not a recognizance but a bail bond. The judgment entering this recognizance recites the appellant and his sureties came into open court and were properly recognized as required by the statute, but at the end, however, of this recognizance the names of appellant and his sureties were signed. Because of this the Assistant Attorney General asked the court to dismiss the appeal because it was in fact a bail bond and not a recognizance. This motion was not discussed in the disposition of the case, the court being of the opinion that it was a recognizance. The mere fact that the names were signed at the bottom of it under the circumstances surrounding the instrument, and its form and circumstances attending it, did not constitute it a bail bond.
A motion for rehearing is now filed by the State asking a reconsideration of the case and dismissal of the appeal, insisting that the instrument was an appeal bond. A sufficient test, and we believe a correct one in testing instruments of this character, is if a forfeiture was declared upon it under scire facias proceeding, would the forfeiture be sustained? If so, the instrument is sufficient; if not, it would not be sufficient. Appellant filed a reply in the form of a contest to the State's motion. The clerk of the County Court where the case was *Page 157 tried reproduces the instrument in his certificate practically, and perhaps literally, as in the transcript. Then he further certifies the above is a true and correct copy of the judgment as entered in the minutes, and that there are no file marks or other entries on the judgment; and further, that if any file marks appeared on the transcript of said judgment they were copied from the original draft of said judgment placed with the papers of said cause for entry, and that file marks on the draft of the judgment were entered by mistake under the impression that the draft of said judgment ought to be marked filed; and he further certifies that it was the custom of A.C. Nicholson, county judge, to require all judgments to be presented to him and have his O.K. before entering same of record. This instrument is shown by the transcript and this certified copy shows it was O.K.'d by A.C. Nicholson, the trial judge. R.H. Templeton, attorney for appellant, filed an affidavit showing the circumstances occurring at the time of the taking of the recognizance and incidental matters. He drew the form of the recognizance before it was entered into by the appellant and his sureties and presented it to the court. The court took the recognizance but had appellant have the names of his sureties signed to the document, and O.K.'d it as was his custom, and of all judgments entered while he was judge, and that the signatures were fixed to the recognizance at the instance of the judge and on his request, and with the advice by counsel that this was a judgment and did not require the signatures of the parties as in case of a bond, and that the recognizance was duly entered of record as a part of the judgments in said case. He says he prepared this document as above indicated and presented it to the county judge, and had the recognizance taken and approved; that Judge Nicholson required all judgments drawn by attorneys to be first presented to him and have his O.K. written on same before the clerk would be permitted to enter them.
This is a sufficient statement of the matters in connection with the taking and approval of the recognizance. If as stated the recognizance was taken and approved by the judge and had his O.K. on it, this did not change it into a bail bond by reason of the fact that he required sureties to sign it. If it was taken and approved in open court as shown by the clerk and the attorney representing appellant, we think it is a sufficient compliance with the law. It is not necessary that the sureties should sign the recognizance if it is taken and approved, or in fact that it should be written at all; but where it is written, and the recognizance is taken and approved as written, as the judge requires, it would not invalidate it as a recognizance. Had there been a forfeiture of this instrument we are of opinion that it would have been, so far as that matter is concerned, sufficient to form the basis of a judgment. This, we think, is a sufficient test of the validity of obligations of this character. The names of the principal and sureties are properly set out in the judgment of the court entering the recognizance, and in this manner it seems was taken and approved. *Page 158
We are of opinion the motion for rehearing ought to be overruled, and it is accordingly so ordered.
Overruled.