ON MOTION FOR REHEARING.
GRAVES, Presiding Judge.The appellants have filed an extensive motion for rehearing herein and therein reiterates much of the contention found in the original brief.
From the testimony, we gather that the appellant, Paul Williams, was absent some thirty-eight hours during the progress of the trial of his case, he having absented himself from late on Friday afternoon until Sunday, when he appeared in the *448presence of the sheriff and posted a new bond in the sum of $1,000.00.
He went to trial before a jury in the original case and was by the jury fined the sum of $150.00 and sentenced to serve 90 days in the county jail.
He was also cited for contempt of court by the trial judge, such contempt consisting in his failure to return on the Friday afternoon when the court recessed from 5:00 until 6:30 o’clock. By reason of his absence from 6:30 o’clock during the trial of his criminal case, appellant was punished by the court for contempt and was fined the sum of $100.00 and sentenced to jail for a term of three days. Appellant has not only served the 90 days in jail, but also the three days in jail, making a total of 93 days in jail, and has paid the fine imposed against him by the jury as well as the fine imposed by the court against him for contempt thereof, making a total of approximately $250.00, including thé fines and costs.
After the payment of these fines and after appellant had served the sentences imposed, his bondsmen were brought into court on the bond forfeiture case, and the testimony thereunder was heard by the jury. However, the court being of the opinion that there was no controversy relative thereto upon which the jury could be called upon'to decide, he dismissed the jury and. rendered a judgment of $500.00 against the two sureties on the bond, the bond having been forfeited immediately upon the appellant absenting himself in the night-time session of his original criminal trial.
We are operating in this instance under Rule 440 of the Rules of Civil Procedure which reads as follows:
“In civil cases appealed to a Court of Civil Appeals, if such court is of the opinion that the verdict and judgment of the trial court is excessive and that said cause should be reversed for that reason only, then said appellate court shall indicate to such party, or his attorney, within what time he may file a remittitur of such excess. If such remittitur is so filed, then the court shall reform and affirm such judgment in accordance therewith; if not filed as indicated then the judgment shall be reversed.”
Article 439, C.C.P., provides as follows:
*449“If, before final judgment is entered against the bail, the principal appear or be arrested, and lodged in jail of the proper county, the court may, at its discretion, remit the whole or part of the sum specified in the bond or recognizance.”
If the trial court had the power to remit the whole or a part of this recognizance, then the question arises, Does this appellate court have such power? This matter, it is suggested, was a part of the discretion of the court trying the case and could only be changed in the event of an abuse of such discretion.
We are cited to many cases of the different states of the Union relative to what is meant by an “abuse of discretion” and while not lending itself to an absolute measuring stick by which such abuse could be understood, the opinions seem to be in fair agreement that an abuse of discretion usually means doing differently from what the reviewing authority would have felt called upon to do. Such ordinarily finds itself depending upon the facts of the particular case. See Brazos River Conservation & Reclamation District v. Harmon, et al., 178 S.W. (2d) 281.
From the cases cited to us, the matter of equity would have some weight in finding an abuse of discretion.
In this instance, Paul Williams suffered not only a monetary judgment, but a jail confinement in the case wherein this bond was present. He was fined more than the lowest fine for this offense, and he has also been punished for contempt of court under the heaviest penalty that could have been awarded him. The trial court could have exercised his discretion in either remitting the whole or a part of the sum specified in this bond, since under the Rules of Civil Procedure this would have been permissible. See Moutas, et al. v. Bryson, 232 S.W. (2d) 110, in which case a writ of error was refused by the Supreme Court.
Under the circumstances here present, we are of the opinion that the court should have exercised his discretion and remitted a part of the sum specified in the bond herein sued upon.
The motion for rehearing herein is granted, and the order of affirmance is set aside.
We conclude that the $500 judgment rendered against the bondsmen and appellant was excessive to the extent of $250, *450and, accordingly, if appellee files a remittitur in that amount within twenty days, the judgment will be reformed and affirmed; otherwise the cause will be reversed and remanded.
ON appellant’s motion for rehearing.