
    Absalom Douthit v. The State of Mississippi.
    1. Scire pacías : judgment nisi. — A writ of scire facias upon a judgment nisi, rendered for default of the appearance of a party charged with crime, is merely process to complete and render final the judgment nisi; and if there be a material variance between such scire facias and judgment nisi, it will be erroneous to enter judgment final, though no objections are taken to the sufficiency of the proceedings.
    2. Scire facias : judgment nisi : variance. — If a judgment nisi be entered against bail, for the non-appearance of his principal, who is described therein as John W. Douthit, and the scire facias issued thereon describe the principal as Richard B. Douthit, the variance is fatal, and a judgment final rendered thereon is erroneous, and will be reversed in this court, and the scire facias quashed.
    In error from tbe Circuit Court of Monroe county. Hon. Frank M. Rogers, judge.
    Tbe plaintiff in error, as bail for one Richard B. Doutbit, entered into a recognizance, conditioned for tbe appearance of said Richard B. Doutbit, at tbe term of tbe court, as prescribed by law, to answer an indictment against bim for larceny. Tbe said Richard B. Doutbit made default; and judgment nisi was rendered against bim and tbe plaintiff in error, bis bail. Tbe judgment nisi against tbe plaintiff in error, recites, that it was for bis default in not bringing into court tbe body of John W. Dou-tbit. A scire facias was issued, on this judgment nisi against tbe plaintiff, describing tbe judgment nisi as having been entered against him for tbe default of Richard B. Douthit. Upon tbe return of this scire facias executed, tbe judgment nisi was made final, tbe plaintiff in error failing to appear and make any defence thereto. From this judgment tbe writ of error in this cause was sued out.
    
      Reynolds and Kinyon, for plaintiff in error.
    
      There is a fatal variance between the judgment nisi and the scire facias. The first describes the principal of plaintiff in error as John W. Douthit, the other "as Richard B. Douthit. Bridges v. The State, 24 Miss. Rep. 153.
    
      B. 0. Grlenn, attorney general, contra:.
    
   Mr. Justice HaNdy,

delivered the opinion of the court.

Of the various errors assigned in this case, we consider it necés-sary to decide upon but one.

The judgment nisi against the plaintiff in error, appears by the record to have been rendered against him, in consequence of his failure to bring into court the body of one John W. Douthit, for whom he had become bail upon recognizance, and who had been charged with a felony. The scire facias issued upon this judgment recites and shows that the plaintiff in error had become bound to bring into court the body of one Bichard B. Douthit, and on diis failure to do so, that the judgment sought to be enforced had been rendered. Upon this scire facias, a judgment by default was rendered against the plaintiff in error, who thereupon sued out this writ of error.

It is manifest by the record, that the obligation of the plaintiff in error, as stated in the scire facias, was essentially different from that appearing by the judgment nisi, and that the scire fa-cias was not supported by the judgment nisi. That judgment not being final until rendered so by the judgment upon the scire facias, it is competent, in determining upon the validity of the latter judgment, to consider whether the scire facias is supported by the judgment nisi, which it is merely process to complete and render final. And if the judgment nisi and the scire facias, taken as parts of the same proceeding, are insufficient to sustain the final judgment, it will be erroneous, and must be reversed, though no objections were taken to the insufficiency of the proceedings in the court below; because upon the whole record, the judgment is erroneous.

The variance between the judgment nisi, and the scire facias, is essential, and fatal to the scire facias and the final judgment.

The judgment is reversed, and the scire facias quashed.  