This case was before us at the Tyler term, 1898, and the appeal dismissed, because no notice of appeal was given at the term at which the final judgment was rendered. We further stated there was no sufficient certificate to the statement of facts.
On motion for rehearing, appellant contends that this is an action on a forfeited bail bond, and that the proceedings are controlled by the same rules governing civil actions, and that consequently the former disposition of this case, under rules pertaining to criminal cases, is not applicable in this character of case. Our attention having been called to this matter by the able discussion of counsel in his brief filed for rehearing, we have examined the questions with more care. The rules governing civil actions are applicable in cases of this character. See Code Crim. Proc., art. 485. Articles 1356, 1357, Revised Statutes, provide for amending and correcting judgments, and it has been held by our Supreme Court that entries nunc pro tunc, perfecting the record, can be made in the lower court pending appeal. See Cowan v. Ross, 28 Tex. 228 [28 Tex. 228]; Blum v. Neilson, 59 Tex. 378; Chestnutt v. Pollard, 77 Tex. 87. We therefore hold that the nunc pro tunc entry of the notice of appeal, though made at a subsequent term of the court, was proper, and gave this court jurisdiction.
As to the statement of facts, the same rule governs which controls in civil cases. The certificate to said statement was therefore sufficient. See Darcy v. Turner, 46 Tex. 30. The case, with the statement of facts, is thus properly before us.
Appellant contends that the evidence fails to sustain the finding of the court, in that it contains no proof that Mrs. Rosa Morse was the executrix of the estate of R. Morse, deceased. In the scire facias Mrs. Rosa Morse is sued as the executrix of the estate of R. Morse, deceased. The bond itself was executed by R. Morse, as one of the sureties. An examination of the statement of facts fails to disclose that any proof was offered of the death of R. Morse, or that Mrs. Rosa Morse had been appointed executrix of his estate. Certainly, there should have been an allegation as to this matter, and proof should have been made. What character of executrix, whether an independent executrix or an ordinary executrix under the will, we are not informed. Indeed, no proof whatever was offered of her fiduciary character. If she was an executrix of the estate under the jurisdiction of the probate court, any judgment that may have been rendered against her would, in the ordinary course, have been required to be certified to the probate court for payment. If she was an independent executrix, an execution would have been authorized under the judgment. See Rev. Stats., art. 1345. From the terms of the judgment itself, it would seem that she was an independent executrix. *Page 573 At least, the judgment authorized an execution against her. Her fiduciary capacity should have been proved; that is, the death of the alleged testator should have been shown, and that she was executrix of the will, together with her qualifications.
Appellant also insists that the court committed an error in excluding the testimony offered as to an agreement to file another bond in lieu of the original bond. This appears to have been a parol agreement between the county attorney and appellant's counsel, and does not appear to have been complied with in the time contemplated between the parties. Appellant, however, proposed to show an excuse for the delay. One of the rules prescribed for the government of district courts is to the effect "that no agreement between attorneys or parties, touching any suit pending, will be enforced, unless it be in writing, signed and filed with the papers as a part of the record." Under this rule, if the matters alleged were a legal defense to the cause of action, the agreement, not having been in writing, could not be enforced. We are further inclined to the view that this was not a matter about which the parties could agree. The motion for rehearing is granted; and, on account of the insufficiency of the testimony as above discussed, the judgment is reversed and the cause remanded.
Motion granted. Reversed and remanded.
DAVIDSON, Presiding Judge, absent.