This case was dismissed at last term of this court on account of the record failing to show appellants filed briefs in the trial court and in this court as required by law and upon proper showing made of such filing, the judgment of dismissal is set aside and the case will now be considered upon its merits. As shown in the opinion of dismissal.
This is an appeal from a final judgment upon a forfeiture of a recognizance. The record discloses that in answer to scire facias, the sureties, appellants, filed their answer embracing a general denial, and upon the trial for final judgment the State offered in evidence the scire facias and judgment nisi and rested the case without further evidence whereupon the court entered final judgment for the sum of $500 against the principal and sureties in the recognizance and from which said appellants appealed and insist without the introduction of said recognizance the evidence is wholly insufficient to support the final judgment. We are of the opinion that the contention of appellants is correct and the law requires the introduction of said recognizance in such cases. In Hester v. State, 15 Tex. App. 567[15 Tex. Crim. 567], the court stated: "The State must meet this denial by producing the bond in evidence just as the plaintiff is required to produce his promissory note where a general denial is pleaded to an action upon it." Citing Houston, et al. v. State, 13 Tex. App. 560[13 Tex. Crim. 560]; Marlin, et al. v. State, 16 Tex. App. 265[16 Tex. Crim. 265], it is stated it was necessary to show the recognizance and judgment nisi to entitle the State to a judgment. Baker, et al, v. State, 20 Tex. App., 259, Judge Hurt in a forfeiture case states, "Appellants pleaded a general denial. This imposed upon the State the necessity of introducing in evidence the bond, it being the very foundation of the suit."
The appellant cites us to the case of General Bonding and Casualty Insurance Company v. State, 165 S.W. 615, which we think is in *Page 507 point and which holds that it is necessary to introduce the bond in question in evidence. The failure of the State to introduce in evidence the recognizance requires a reversal of this case. For the error above discussed we are of the opinion that the judgment of the trial court should be reversed and it is accordingly so ordered.
Reversed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.