This is a bond forfeiture case.
Appellants, F. R. Wildman and J. N. Wildman, were sureties upon the $5,000.00 bail bond of A. F. Luse, under indictment for forgery, a felony, in the District Court of Pecos County.
The bond, dated October 29, 1946, contained the following:
"* * * if the said A. F. Luse shall well and truly make his personal appearance before said Court at its present term now in session to be held at the Court House of said County of Pecos, in the City of Ft. Stockton, Texas, instanter, and there remain from day to day and from term to term of said Court, until discharged by due course of Law, then and there to answer said accusation against him, this obligation shall become void; otherwise to remain in full force and effect."
After previous notice of the setting of the case for trial and the principal failing to appear, the bond was, on the 10th day of March, 1947, declared forfeited and judgment nisi entered.
Scire facias was duly issued, returnable September 8, 1947. Appellants were duly served, and answered on September 6, 1947. The answer was amended on September 23, 1947, and upon that amended answer the case went to trial.
The amended answer set forth as a defense that, at the time the bond was forfeited, the principal, A. F. Luse, was in "the State of California under a bond conditioned upon his appearance before a superior Court of the State of California at the times pertinent to this cause," and that it was impossible for him to appear before both courts at the same time.
After hearing, the judgment nisi was made final on October 15, 1947, from which this appeal has been perfected.
At the conclusion of the testimony, appellants filed a motion for judgment, claiming a fatal variance between the scire facias and the bond, in that the scire facias alleged the execution of a bond conditioned that the principal should make his appearance before the court on the 10th day of March, 1947, whereas the bond, as well as the judgment nisi, recited that the principal *Page 106 was to appear instanter, and remain from day to day until finally discharged. In other words, it is contended that as the scire facias expressly alleged the principal was to appear upon a date certain — that is, March 10, 1947, the bond, as well as the judgment nisi, was required also to so allege, and in not doing so there was a fatal variance.
With this contention we cannot agree. The bond bound the principal to appear before the court instanter and from day to day thereafter until discharged by the court. Such, of necessity, included the date of the forfeiture. The judgment nisi recited that it was entered on the 10th day of March, 1947, the date alleged in the scire facias. We are unable to conclude, therefore, that there was a variance, as contended. Moreover, Art. 427, C. C. P. prescribes the requisites of a citation, in forfeited bonds, which is the scire facias in this case. Said article nowhere requires that the returnable date on the date the principal is required to appear be stated therein. It must be remembered that appellants appeared and answered in the case. No motion was made to quash the scire facias or citation.
Appellants filed a motion for a continuance because of the absence of F. R. Wildman, one of the appellants who, it was alleged, was sick in a hospital in another city and unable to attend court.
There is nothing in the motion showing that the appellant mentioned was in possession of any information or could testify as to any fact which would support the defenses urged. The motion was predicated solely upon the absence of the named appellant at and during the trial. The motion was addressed largely to the trial court's discretion.
In view of the limited defense relied upon, as also the record as a whole, there is nothing to show that the trial court abused his discretion or that the appellant was in any manner injured by the trial during his absence.
Finding no reversible error, the judgment of the trial court is affirmed.
Appellants having superseded the judgment of the trial court by a supersedeas bond, it is ordered that judgment be entered also against the sureties upon the supersedeas bond.
Opinion approved by the Court. *Page 107
ON MOTION FOR REHEARING.