
    JAMES THOMAS et al. v. THE STATE.
    COURT OF APPEALS,
    GALVESTON TERM, 1883.
    
      Bail Bond — Judgment Nisi. — A judgment nisi on a forfeited bail bond is sufficient when it states how and .where the defendant shall be cited to appear and show cause why the same should not be made final, and where it is expressly declared in the said judgment that the same will he made final unless good cause be shown why the defendant did not appear and answer the said charge of theft of a gelding.
    
      
      Same. — Under the ruling iu Ishmael v. The State, 43 Texas, 243, a bail bond in which the principal and sureties are jointly and severally bound in a specific sum, will not, when forfeited, authorize a judgment for the full amount of the bond against each of the parties bound.
    
      Same — Unauthorized Term. — A bail boud which obligates a defendant to appear at a term of the court not authorized by law is void.
    Appeal from- Dewitt county.
   Opinion by

White, J.

1. Instead of the judgment nisi failing' to recite that which is made by statute requisite to its sufficiency, as was the case in Collins v. State and Thomas v. State, 12 Court Appeals, pp. 356 and 417, it does in fact recite that which-is required, and a great deal more which can and may be treated as- harmless surplusage. After1 stating' how and where defendant shall be cited to appear, and show cause why the judgment nisi should not be made final it is expressly declared in the said judgment “that the same' will be made final unless good cause be shown why the said James Thomas did not appear and answer said charge of theft of a gelding as he was bound to do.” This portion indicated by italics is a full, substantial and almost literal compliance with the language used in the statute. (C. C, P., Art. 441./

2. Another objection urged to the judgment nisi, and also the final judgment is that the forfeiture is for the full amount of the bond against each of the parties bound. This objection is good uuder the ruling of our supreme court iu Ishmael v. The State, 41 Texas, 241, wherein it' was held that “a bail bond in which the principal and sureties are jointly and severally bound in a specific sum will not, when forfeited, authorize a judgment for the full amount of the bond against each of the parties bound.” But in so far as this error is concerned, a reversal of the judgment would not necessarily follow, hut this court, acting under the authority of the statute, Art. 869, C. C. P., might and would have reformed and corrected the judgment in this particular.

There is, however, a matter apparent of record and fundamental in character, which is fatal to the validity of the judgment in this ease. In the appearance bond, which was the basis of the whale proceeding, the obligors bound themselves that James Thomas, the principal, should “be and appear before the next term of the district court to be held in and for the county of Dewitt, at the courthouse thereof, in the city of Cuero, on the 17th day of February, A. D. 1880,” etc. -

3. Now under the statute which was in force at the date of the execution of the bond, the terms for the holding of the district court in Dewitt county were fixed “on the first Tuesdays in March and September, and might continue in session three weeks.” (Acts 1879, General Laws, Regular Session, 16th Legislature, pp. 96-7.) There was no law authorizing the holding of a term of the district court for Dewitt county on the 17th day of February, 1880. A bail bond which obligates a defendant to appear at a term of the court not authorized by law is void. (Thomas v. State, 12 Texas, Ct. App., 417; Brite v. State, 24 Texas Reports., 219.)

The bond being void no legal proceedings could be maintained or judgment rendered upon it. Wherefore the judgment is reversed and prosecution dismissed. Reversed and dismissed.  