Appellant complains because of the statement in our original opinion as follows:
"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."
It is alleged in this motion that there was no setting of this cause as was the usual custom and usage and, therefore, that the cause was not properly reached and called on the trial court's docket. The bond sued upon was dated October 29, 1946, and bound the appellant Luse to appear instanter before said court and there remain from day to day and term to term until discharged by due course of law, etc.
The judgment of the court herein is dated March 10, 1947, and recites as follows:
"THIS DAY this cause was called for trial, and thereupon came THE STATE OF TEXAS by her District Attorney, but the Defendant A. F. Luse, failed to appear and answer in this behalf, and thereupon his name was called distinctly at the door of the Court House, and a reasonable time given him after such call was made in which to appear, yet the said Defendant came not, but wholly made default", etc.
On March 10, 1947, a judgment nisi was entered, such judgment to be made final at the next term of court unless good cause was shown therein why the defendant did not appear.
The undertaking in the bond required Luse to make his appearance instanter before such court and there remain from day to day, etc. We think it was his duty to thus appear, and when this case was called, to answer thereto. This he failed to do; hence the forfeiture of his bond. We see no reason why this judgment should not have been made final.
The motion for a rehearing will be overruled. *Page 108