
    Rogers v. Goins.
    (Knoxville.
    September 28, 1895.)
    Judgment Nisi. Essential to recovery of penalty from defaulting ■witness.
    
    A judgment nisi is essential to the validity of a proceeding by - scire facias to recover the statutory penalty of a defaulting-witness, and the want of it is not waived by appearance and defense on the merits.
    Oases cited and approved: Upton v. Girdner, 8 Bax., 183; State v. Thomas, 11 Lea, 113; Slaughter u. Bridwell, 1 Head, 313; Kincaid v. Rogers, 3 Sneed, 1; Nott v. Smith, 2 Sneed, 244; State v. Dill, 2 Sneed, 414; State v. Lacey, 3 Hum., 225; Dick-enson v. Kincaid, 11 Hum., 73; Duke v. Given, 4 Yer., 478; .State v. Patterson, 7 Bax., 246; Payton v. Stuart, Peck, 156; 17 Tex. App., 120; 30 Miss., 133; 20 111., 381; 21 Ala., 257, 563; 5 B. Mon., 172; 16 N. J. L., 94.
    PROM CAMPBELL.
    Appeal from Chancery Court of Campbell County. H. B. Lindsay, Ch.
    S. I. Rogees for Rogers.
    J. E. Johnson for Goins.
   Wilkes, J.

Complainant, Rogers, had defendant, Goins, subpoenaed to appear before Ed Gray, a Justice of the Peace, with certain corporation books of the city of Jeilico, and to testify and give his deposition, to be nsed in a case in the Chancery Court at Jacksboro, wherein the board of mayor and aldermen of Jeilico were complainants against S. I. Rogers et aL, defendants. The witness failed to appear at the time and to bring the books, and complainant caused a noire facias to issue from said Chancery Court against- Goins to appear and show cause why judgment for a forfeiture of $125 should not be taken against him. On the hearing, the Chancellor refused to give any judgment or ’take any forfeiture, and complainant appealed to this Court and assigned errors. The matter has been heard by the Court of Chancery Appeals, and they have affirmed the decree of the Chancellor, and complainant has appealed to this Court. The Chancellor rested his decision on the ground that it was not clear that his Court had jurisdiction, and because he was of opinion that the defendant could not be required to produce the records of his office as Recorder of Jeilico before the Justice of the Peace, and that it was not clear that he was summoned to testify independent and outside of the records which he was commanded to bring with him. The Court of Chancery Appeals, without passing specifically upon these grounds as sufficient, was of opinion that there was a fatal defect in the proceedings in the fact that there was no judgment nisi rendered in the case on which to base the scire facias. While no case is reported in our books holding this in direct terms, it has been the universal practice. Upton v. Girdner, 8 Bax., 183; State v. Thomas, 11 Lea, 113-5; Slaughter v. Bridwell, 1 Head, 343; Kincaid v. Rogers, 3 Sneed, 1; Nott v. Smith, 2 Sneed, 244; State v. Dill, 2 Sneed, 414; State v. Lacey, 3 Hum., 225; Dickenson v. Kincaid, 11 Hum., 73; Duke v. Given, 4 Yer., 478-9. The same practice is followed in other States, and judgment nisi held indispensable. Lindley v. The State, 17 Tex. App., 120; Douthitt v. The State, 30 Miss., 133; Conner v. The People, 20 Ill., 381.

In Alabama, it has been held that a scire facias against a defaulting witness must set out the substance of the judgment nisi. Spence v. Simmons, 21 Ala., 563; Amanuel v. Kitchun, 21 Ala., 257. The final judgment in scire facias proceeding is not for a specific amount, but that execution issue upon a judgment nisi previously rendered fixing the amount. Payton v. Stuart, Peck, 156; Murray v. Baker, 5 B. Mon., 172; Tindell v. Carson, 16 N. J. L., 94. It is true, defendant did not demur, but sought to "defend on the merits, and, ordinarialy, • this would waive all errors, but in this case there is no judgment nisi fixing any amount to be made final. State v. Patterson, 7 Bax., 246-7.

We think there is no error in the decree of the Court of Chancery Appeals, and the defect pointed out is such as vitiates and makes void the judgment ■in toto and the decree is affirmed with costs.  