
    SEATON et al. v. STATE.
    (No. 9505.)
    (Court of Criminal Appeals of Texas.
    Nov. 18, 1925.)
    .1. Bail &wkey;j89(!) — Erroneous recitals in scire facias as to dates of bail bond and appearances of defendant held fata!.
    Scire facias, reciting dates of bail bond and appearances of defendant as being in year 1925 instead of 1924, was fatally defective, and default judgment against sureties on bail bond was invalid.
    2. Bail &wkey;>93 — Sureties ' must each be served ■ with copy of scire facias to support default judgment.
    Where sheriff’s return showed that only one of sureties on bail bond was served with copy of scire facias, on accused’s failure to appear, defhult judgment against sureties was unauthorized.
    Commissioners’ Decision.
    Appeal from District Court, Robertson County; W. C. Davis, Judge.
    Scire facias proceeding by the State against D. Rabinowitz and another, sureties on the bail bond of Roy B. Seaton, who failed to appear. Judgment for the State, and the sureties appeal.
    Reversed and remanded.
    O. E. Wencker, of Dallas, for appellants.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

The record discloses that Roy L. Seaton entered into a bail bond on September 12, 1924, with D. Rabinowitz and N. C. Walters as sureties, the plaintiffs in error herein, conditioned that he make his appearance before,the district court of Robertson county on the 10th day of November, 1924, and upon his failure to appear before said court said bond was forfeited, and judgment nisi was entered on January 26, 1925, and scire facias was issued by the clerk of said court to Dallas county, Tex., stating:

“Whereas, on the 12th day of September, A. D. 1925, * * * Roy L. Seaton, * * * the defendant, did enter into a bail bond with D. Rabinowitz and N. C. Walters as sureties * * * conditioned that the said defendant should make Ms personal appearance before the honorable district court of Robertson county, Tex., on the 10th day of November, A. D. 1925, etc.” ,

The sheriff of Dallas county, in making his return on said scire faeia-s, stated:

“Came to hand on February 11, 1925, * * * and executed on February 16, 1925, by delivering to N.- C. Walters in Dallas county, Te-x., 2/14 — 25, at 9:55 a. m., and D. Rabinowitz in Dallas county, Tex., 2/16 — 25, at 1:55 p. m., a true copy of this writ.”

The judgment nisi was made final on said writ and return by default.

It is the contention of the plaintiffs in error in this case that the scire facias was so defective, in reciting the dates of the bail bond and the appearance of the defendant to be in the year 1925 instead of 1924, that same was insufficient to authorize a judgment by default in this case. We think this contention is supported by the authorities cited by the plaintiffs in error in this case. See Raymond v. State, 87 Tex. Cr. R. 178, 220 S. W. 88, and other authorities therein cited.

Plaintiffs in error also contend that the sheriff’s return on said scire facias, íá stating that he served in person “a true copy of this writ,” which showed only one copy served on both of them, is so defective that the trial court was in error in rendering a default judgment against them -thereon, and that under the law that said return should show that he served each of said plaintiffs in error with a copy of said citation. This identical question has been decided adversely to the state’s contention by this court in the case of Finley v. State, 89 Tex. Cr. R. 224, 230 S. W. 420, wherein this court, through Judge Hawkins, stated:

“The first assignment is that the court below erred in rendering final judgment because it does not appear from the officer’s return that the sureties were each served with copy of the scire facias writ. The assistant attorney general properly confesses error,” — citing article 492, O. O. P., and many authorities in support of the ruling thereon.

For the errors above discussed, we are of the opinion that the judgment of the trial court should he reversed and remanded; and it is accordingly so ordered.

PEE. CtFEIAM.

The foregoing opinion of the Commission of Appeals has been examined by thQ judges of the Court of Criminal Appeals and approved by the court. 
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