Appellant Guertler has filed a motion for rehearing, urging that we erred in holding that no sufficient excuse was shown for his failure to file his answer in the trial court prior to the taking of a final judgment upon the forfeited bond. The only excuse or reason suggested by the record for such failure, was that an attorney whom appellant had employed, failed to file any answer. It is not even attempted to be shown that said attorney was in any wise prevented, or was unable to file such answer, or that he was misled; in fact, there is no effort on the part of appellant to account for the action of said attorney, in any way. Under all the authorities cited in our original opinion, this is no showing why the trial court should have granted a new trial, and certainly is no showing why we should hold that in refusing a new trial, the lower court was guilty of abusing the discretion confided by law in him. No authority is cited by appellant, holding to the contrary, and none are known to the Court.
Complaint is also made that we should have held that the defenses which appellant would have made, if an answer had been filed, were meritorious. The only proposition advanced in support of this contention in his motion is, that inasmuch as the bail bond in question described the offense with which appellant's principal was charged, as "unlawfully keeping intoxicating liquor in violation of law, a felony," *Page 476 same was not a sufficient description, and the said bond was invalid. Appellant cites as his only authority the recent case of Saunders v. State, 216 S.W. Rep., 870. This case does not support appellant's position. The bond under discussion in that case did not state whether the principal therein was charged with a felony or misdemeanor, did not set out any offense known eo nominee to the law, nor did it set out the constituent elements of any offense known to our statutes, and, hence, it was correctly held to be insufficient. In the instant case it appears that the principal was charged in terms as set out in the bail bond, with a felony; and under Article 321, Vernon's C.C.P., it is a sufficient description, and all that is necessary is to state that the accused is charged with a felony or a misdemeanor, as the case might be. The remainder of the descriptive language used in the bail bond in the instant case might be treated as surplusage.
Being unable to agree with any of the contentions made in this motion, the same will be overruled.
Overruled.