This case was affirmed at the last term of this court, and motion for rehearing filed in time required by law. At the request of appellant the case was continued until this term of the court to give them ample time to investigate the questions involved and file a brief herein, additional counsel having been employed in the case on the motion for rehearing. Very able and exhaustive briefs have been filed, and in the main we agree with all the propositions of law therein stated, but unfortunately for appellant the authorities cited by him show that Criminal District Court No. 2 of Dallas County was the only court that could have declared a forfeiture of the bail bond, — it having jurisdiction of the offense, and possession of the record at the time the forfeiture was declared. In this able brief counsel for appellant cite the following authorities, and to which we agree:
"First. A scire facias can only issue from the court having possession of the record on which it is founded; the jurisdiction is determined by the record without regard to the residence of the parties or the sum in dispute." 35 Cyc., p. 1151.
If a scire facias proceedings is based on a judgment it must be prosecuted and a writ issued in the court pronouncing judgment and if the *Page 659 proceeding is based on a recognizance, bail bond or other obligation in writing, filed in the court, it must be regarded as a record of the court and the scire facias must be prosecuted in that court. (See Commonwealth v. Downey, 9 Mass. 520; Boylan v. Anderson, 3d N.J.L., 529.)
"A scire facias on a forfeited recognizance can only issue from that court which has the record upon which it is founded." (See State v. Kinne, 39 N.H. 129.)
Applying the same general principle, see Garner v. Smith,40 Tex. 505.
If the court that forfeited the bond did not, in law, have the possession of the record, and jurisdiction of the cause, we would readily agree that the forfeiture should not have been taken, but as will hereinafter be shown, the court forfeiting the bond, had both physical and legal possession of the record, and jurisdiction of the cause wherein the forfeiture was taken. Again, in their assignment, an expression in the original opinion, "The general denial was met by the introduction of the bond in evidence," is copied and criticized, and it is insisted that this is not the law, but the State was compelled to introduce both the bond and the judgment nisi to meet the general denial. This we readily concede and agree to be the law, as announced in the following cases, cited by appellant: This court has heretofore many times expressly held that the effect of a general denial in a case like this one is, to require the State to make proof of all the material allegations of the scire facias. (See Goodin v. State, 14 Texas Crim. App., 443; Short v. State, 16 Texas Crim. App., 44; McWhorter v. State, 14 Texas Crim. App., 239; Houston v. State, 13 Texas Crim. App., 560; Baker v. State, 21 Texas Crim. App., 359; Branch on Criminal Law, sec. 123.)
Mr. Branch states the rule as follows: "A general denial puts in issue all material allegations in the scire facias and burden of proof is on the State to make out its case," citing authorities.
Now, what constitutes the State's case? From Houston v. State, 13 Texas Crim. App., 560, we give the answer as follows: "A proceeding upon a forfeited bail bond is, in effect, a suit upon the bond, in which the scire facias serves the purpose of both a petition and a citation. Its foundation is the bond and the judicial declaration of the forfeiture of the bond, which is the judgment nisi. To entitle the State to a judgment final, it must prove the cause of action as in a civil suit. This proof is made by, first, the bond, and, second, the judgment nisi declaring its forfeiture."
For the same effect, see McWhorter v. State, 14 Texas Crim. App., 239; Goodin v. State, 14 Texas Crim. App., 442, 443, and Arrington v. State, 13 Texas Crim. App., 554.
As hereinbefore stated we heartily concur in these rules of law, but the original opinion and the record show that both thebond and the judgment nisi were introduced in evidence, and the inapt expressions used in paragraphs of the opinion, need not so lengthily have been discussed, when the record and the opinion rendered both show and recite *Page 660 that both the bond and judgment nisi were introduced in evidence. But to brush aside these matters, and get down to the real issues presented; appellant contends that when the opinion in the Gay case, cited in the original opinion, was rendered, proceedings to recover on forfeited bail bonds were regarded as criminal actions, but by the amendment to the Code in 1876 they were changed to civil actions. But this question has been so often before this court and the Supreme Court and decided adversely to appellant's contention, we do not deem it necessary to discuss the matter. In the case of Jeter v. State, 86 Tex. 555, it was decided by the Supreme Court that scire facias cases are criminal and not civil cases. See also Aber v. Warden, 49 Tex. 377; State v. Morgan, 4 Texas Crim. App., 33; Cassaday v. State, 4 Texas Crim. App., 96; State v. Ward, 9 Texas Crim. App., 462. In fact that this appeal lies to this court and not to the Supreme Court, is conclusive that it is a criminal and not a civil case. If it was a civil case we would have no jurisdiction. By reference to chap. IV of the Code of Criminal Procedure of 1856, it will be seen that only very slight changes were made in these articles in 1876, or since that date, and the law as announced in the case of Gay v. State, 20 Tex. 504, has never been seriously questioned until in this case, and we think the law as announced in that case is correct and we adhere to it. Appellant cites no authorities holding to the contrary, but as demonstrated in the original opinion and cases there cited, that ruling was correct under our Code of Procedure.
The only other question raised, and we doubt very seriously whether or not it was raised in the court below, as evidenced by the assignments of error copied in the original opinion, is that as the bond was taken in the Criminal District Court of Dallas County, and the forfeiture rendered in the Criminal District Court No. 2, and there being no order of transfer in the record, Criminal District No. 2 was without authority and jurisdiction to render the forfeiture, and the judgment should for this reason be reversed. Although not raised in the court below, as we read this record, yet when presented in a motion for rehearing with such force we, of our own motion, ordered the District Clerk of Dallas County to send up certified copied of all orders and judgments, as evidenced by the minutes of the court, entered of record in the case of Henry Jackson, whose bond this surety made. And the first order and judgment we find after the order showing the indictment, was properly presented in court, is as follows:
"Thursday, December 21, 1911.
"It is ordered by the court that the following cause be transferred to the Criminal District Court No. 2 of Dallas County for trial and final adjudication; 10889 — The State of Texas v. Henry Jackson."
Thus evidencing the fact that the case had been legally transferred to the court in which the forfeiture was taken, and that court and that court alone had jurisdiction of the offense, and legal and physical possession of the record in the case when the forfeiture was taken on March 12, 1912. Appellant cites, in his brief, many cases under the law authorizing *Page 661 a change of venue in cases, but none of them have application to this case. No order was entered under that provision of the Code, but the proceedings herein were had and authorized by chapter 19 of the Acts of the Special Session of the Thirty-second Legislature, creating Criminal District Court No. 2, for Dallas County. The first two sections of that Act read:
"Section 1. That there is hereby created and established at the city of Dallas a Criminal District Court to be known as the `Criminal District Court No. 2 of Dallas County,' which court shall have and exercise concurrent jurisdiction with the Criminal District Court of Dallas County, Texas, as now given and exercised by the said Criminal District Court of Dallas County, under the Constitution and laws of the State of Texas.
"Sec. 2. From and after the time this law shall take effect the Criminal District Court of Dallas County, and the Criminal District Court No. 2 of Dallas County shall have and exercise concurrent jurisdiction with each other in all felony causes and in all matters and proceedings of which the said Criminal District Court of Dallas County now has jurisdiction; and either of the judges of said Criminal District Court may in their discretion transfer any cause or causes that may at any time be pending in his court to the other Criminal District Court by an order or orders entered upon the minutes of his court; and where such transfer or transfers are made the clerk of such District Court shall enter such cause or causes upon the docket to which such transfer or transfers are made, and, when so entered upon the docket, the judge shall try and dispose of said cause in the same manner as if such causes were originally instituted in said court."
While, of course, it would have been proper, and the clerk ought to have copied all orders and judgments entered in the case in the transscript, yet, it was not necessary that the transfer be introduced in evidence. If the transcript on appeal does not show the order changing the venue, or the order as copied in the transcript would present error, this court may by certiorari have the clerk of the court in which the indictment was returned, send up a correct transcript of the order. This question is so thoroughly discussed and decided in the case of Vance v. State, 34 Tex.Crim. Rep., in an opinion by Judge Henderson, and in Biggerstaff v. State, 59 Tex.Crim. Rep., 129 S.W. Rep., 840, in an opinion by Judge Ramsey, we do not deem it necessary to discuss it, for we could add nothing to the able reasoning of those cases, and the law is as therein decided, we think, beyond question. In the case of Cummings v. State, 37 Tex. Crim. 436, it was held that where the Legislature authorized judges of the Thirty-seventh and Forty-fifth Judicial Districts to transfer causes from one court to the other, and where this has been donewithout a copy of the orders of transfer, this does not invalidate the jurisdiction of the court to which the case has been transferred, and if the jurisdiction be attacked upon this ground, it is sufficient answer that the proper orders were entered in *Page 662 the court "a quo" and copy of said orders could then be filed even in answer to a motion in arrest of judgment. As in that case, in this case, the law does not require that a copy of the order of transfer accompany the record, but as said by Judge Davidson in that case, it would be more regular for it to do so, but in case it does not do so, the order may be filed when the question is first raised, even after judgment. And it has been held by this court even under the change of venue statute, that it is error for the court to admit in evidence on the trial of the case, the order changing the venue, — that the court takes notice of such facts, if the order is with the papers in the case, and in case this is not questioned in the trial court as in this case, no question as to that matter would be presented for review. Shamburger v. State, 24 Texas Crim. App., 433. Had this question been raised in the court below, doubtless the transcript as originally presented in this court, would have shown the order, but this order as made was for the court alone, and as held by all the decisions, it was not necessary to be introduced in the trial of the case.
Appellant's able counsel devoted the main part of their argument to this question on motion for rehearing, doubtless induced to do so by the fact that the transcript as originally filed in this court did not contain the order of transfer, but as herein shown the order was made and properly entered in the minutes of the court prior to the time of the transfer of the case, and under the law as passed by the Thirty-second Legislature at its special session hereinbefore cited, Criminal District Court No. 2 was authorized to declare a forfeiture of the bond, and the proceedings are regular in every respect.
The further contention is made that the bond introduced in evidence was conditioned for the appearance of Jackson in the Criminal District Court of Dallas County, and no other court could declare a forfeiture. To so hold would nullify the Act of the Legislature above quoted which created the second Criminal District Court in Dallas County and authorized the transfer of causes. When the case was transferred on December 21st by the Criminal District Court to Criminal District Court No. 2, then the bond under the law was conditioned for his appearance in that court. In change of venue cases the law requires a new bond, but in this case where two courts are created in the same territory, where only one existed before, under the terms and conditions of the law giving them concurrent jurisdiction, and authorizing the transfer of causes from one court to the other, no new bond was required, but the bond already in existence continues to be responsible for his appearance in that branch of the court to which it was transferred under this Act. The scire facias in this case, which is the petition, recites that the bond was taken in a case pending in the Criminal District Court of Dallas County, and thereafter transferred to Criminal District Court No. 2, in which said bond was forfeited, and appellant was thus given specific notice of all the steps taken in the matter, and yet in the court below as shown by the assignments of error in the original opinion, no such objections were *Page 663 there urged as are here now sought to be urged. The fact thatjudgment nisi did not also recite that it had been transferred would not render the judgment inadmissible, had it been objected to on that ground but no such objection was made when it was offered and introduced in evidence. The facts recited in the judgment nisi, and in the citation or scire facias, both of which are copied in the original opinion, show that it was the bond introduced in evidence which had been forfeited, and the one on which the State sought a recovery, and after the case was transferred, Criminal District Court No. 2 was authorized to declare a forfeiture, for it then was conditioned for his appearance before that court under the law creating that court, and it was the court in which the cause was pending, and the record was in that court.
The motion for rehearing is overruled.
Overruled.
Davidson, Judge, dissents.
April 22, 1914.