
    [No. 2824.]
    R. A. McWhorter et als. v. The State.
    1. Scire Facias—Judgment nisi upon a forfeited bail bond or recognizance must recite that “ the same will be made final unless good cause be shown at the next term of court why the defendant did not appear.”
    2. Same—Practice—Evidence.—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; second, the judgment nisi declaring its forfeiture.
    Appeal from the District Court of Navarro. Tried below before the Hon. L. D. Bradley.
    This appeal was prosecuted from the forfeiture of the bail bond of R. A. McWhorter, bailed under an indictment for theft. Five hundred dollars was the amount of the bond and judgment.
    
      Simkins, Simkins & Neblett, for the appellants.
    
      J. H. Burts, Assistant Attorney General, for the State.
   Willson, Judge.

A judgment nisi upon a forfeited bail bond or recognizance must state that “the same will be made final unless good cause be shown at the next term of the court why the defendant did not appear.” (Code Crim. Proc,, Art. 441.) This requirement of the statute is mandatory, and an omission to comply with it in entering the judgment nisi is fatal to the validity of the proceeding. (Collins v. The State, 12 Texas Ct. App., 356.) In the judgment nisi in this case, this essential statutory requisite does not appear, and for this reason the judgment final must be reversed and the cause remanded; which will leave the prosecution to take such steps as it may deem advisable to amend the judgment nisi and proceed to the enforcement of it.

Other errors assigned we consider untenable, except that the court erred in rendering judgment final without any evidence being introduced on the part of the State. In Arrington et al. v. The State, 13 Texas Court of Appeals, 554, this court said: “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.”

Reversed and remanded.

Opinion delivered May 26, 1883.  