
    BURGEMEISTER v. ANDERSON, District Judge.
    (No. 3109.)
    (Supreme Court of Texas.
    March 19, 1924.)
    1. Mandamus <&wkey;164(3)— Averments of petition considered true where respondent interposed unverified general denial.
    An unverified general denial can be given no effect in a mandamus suit, and the court must dispose of the case as if the averments of relator’s petition were admitted to be'true.
    2. Bail <&wkey;77(2) — Principal on bond entitled to show cause why judgment nisi forfeiting it should not be made final.
    Under Code Cr. Proc. 1911, arts.-489, 490, 497, 502, the principal on a bail bond is a party to a judgment nisi forfeiting it and to subsequent proceedings, and is entitled and required to show good cause why the judgment should not be made final.
    3. Bail <&wkey;77(2) — Principal’s right to show cause why judgment forfeiting bond should not be made final not prejudiced by clerk’s failure to issue citation against sureties.
    Under Code- Cr. Proc. 1911, art. 490, it is not the duty of the principal on a bail bond, but the clerk’s ministerial duty, which the court may require him to perform, to issue citations for service of notice on sureties to appear and show cause,why a judgment nisi forfeiting it should not be made final, and failure to issue citations would not deprive principal of his right to an adjudication of the issues tendered by him, though it would warrant a continuance of the hearing.
    4. Mandamus <S&wkey;48 — Lies to compel court to hear issues tendered by principal on bail bond forfeited by judgment nisi.
    Where a court refuses to exercise its jurisdiction to a party’s injury, as by refusing to hear proof by the principal on a bail bond, in obedience to the court’s command to show cause why a judgment nisi forfeiting the bond should not be made final, that she had appeared and answered the indictment before the judgment nisi was made final, which fact authorizes remission of all or part of the sum specified in the bond (Code Cr. Proc. 1911, art. 503), mandamus will lie, especially in view of Rev. St. art. 1528, enjoining the Supreme Court to compel a judge of the district court to proceed to trial and judgment, such writ being the only adequate relief against deprivation of relator’s right.
    Mandamus by Emma Hedda Burgemeister against William S. Anderson, Judge of the Thirty-Seventh Judicial District.
    Writ granted, with directions.
    See, also, 83 Tex. Cr. R. 307, 203 S. W; 770.
    T. M. Campbell, of Palestine, and Chambers & Watson, of San Antonio, for relator.
    W. W. Walling, of San Antonio, for respondent.
   GREENWOOD, J.

Being indicted for murder in the district court of the Thirty-Seventh judicial district of Texas, relator gave a bail bond with two sureties in the sum of $7,500. On February 1, 1915, the bail bond was forfeited, and judgment was entered that the state recover of relator and her sureties the sum of $7,500, and that the judgment be made final, unless good cause why relator did not appear be shown at the next term of the court.

Relator filed a motion in said court to set aside the judgment nisi on various grounds, one of which was that relator had voluntarily appeared and stood her trial under the indictment, and that the trial had resulted in a verdict and judgment of “not guilty.” The district judge refused to entertain the motion, and, on February 11,1918, the court entered an order dismissing the motion for the reason that “the court of its own motion refused to take jurisdiction thereof.”

The faets appear from the averments of relator’s petition, which is duly verified, and the exhibits attached thereto. Respondent interposes a general denial, without verification, to which absolutely no effect can be given in a mandamus suit. It therefore becomes our duty to dispose of the case as if the averments of relator’s petition were admitted to be true. May, County Attorney, v. Finley, Comptroller, 91 Tex. 354, 43 S. W. 257.

The Code of Criminal Procedure particularizes each step in the collection of recognizances and bail bonds. First is the entry, after the principal’s failure to appear on being called, of judgment nisi that the state recover of the defendant and of the sureties the amount for which they are bound, and that the judgment will be made final, unless good cause for the principal’s failure to appear be shown at 'the next term of the court. Article 489, C. C. P. Second is the citation from the court notifying the sureties of the forfeiture and requiring them to appear at the next term of court and show cause why the judgment nisi should not be made final, it being declared unnecessary to give notice to the principal. Article 490, C. C. P. Third is the docketing of the case on the court’s civil docket in the name of the state as plaintiff and of the principal and his. sureties as defendants. Article 497, C. O. P. Fourth is the entry of final judgment by default, which is authorized only when both the sureties and the principal fail to answer, after due citation to the sureties; or, the entry of final judgment after a trial of the issues between the parties. Articles 502, 501, O. G. P.

Articles 489, 490,' 497, and 502 admit of no other construction than that the principal is a party to the judgment nisi and all subsequent proceedings, and is both required and entitled to show any good and sufficient cause why the interlocutory judgment should not be made final.

By the judgment nisi the court acquires jurisdiction to adjudicate the matter of enforcing the principal’s obligation to the state, as well .as that of the sureties, and, on the principal’s appearance and tender of issues excusing his failure to appear at the time of forfeiture, the statutes entitle him to both a hearing and a determination as to whether the judgment nisi shall be vacated in whole or in part or shall be made final.

It is not the principal’s duty to cause citation to issue against the sureties, hut it is the plain, ministerial duty of the clerk, which the court should require him to perform, to issue citations for service on the sureties. Failure to issue citations would warrant a continuance of a hearing for the determination of issues tendered by the principal as to whether the judgment nisi be made final, hut it could not deprive the defendant of his ultimate right, on service of citation on the sureties, to an adjudication of the issues tendered by him.

Article 503 of the Code grantéd statutory authority to the court to remit the whole or part of the sum specified in the bail bond upon proof of the averment in relator’s motion that she had appeared and answered the indictment before the judgment nisi had been made final. On these and the other averments of her motion she was entitled to an adjudication from the court.

Should the court make the judgment final against relator and sureties for more than $20, then article 960 of the Code provides that relator and her sureties, or either of them, may appeal from the final judgment and have reviewed the correctness of the action of the district court on the issues tendered and the facts proven.

The court having, on its own motion, refused to hear and determine the issues tendered by relator, in obedience to the court’s express command that she show cause why the judgment nisi be not made final, this case comes within the class where a court, having acquired jurisdiction, refuses to exercise it to a party’s injury, for which adequate - relief can be afforded in no other way than through the award of a mandamus.

The Supreme Court of the United States said in the case of Hollon Parker, Petitioner, 131 U. S. 221, 226, 9 Sup. Ct. 708, 709 (33 L. Ed. 123):

“The right of mandamus lies, as held in Ex parte Parker, 120 U. S. 737, where an inferior court refuses to take jurisdiction when by law it ought to do so, or where, having obtained jurisdiction, it refuses to proceed in its exercise. It does not lie to correct alleged errors in the exercise of its judicial discretion.”

Again, in Ex parte Russell, 13 Wall. 664, 670 (20 L. Ed. 632) the court declared:

“Where a court declines to hear a case or motion, alleging its own incompetency to do so, or that of the party to be heard, mandamus is the proper remedy. A writ of error or appeal does not lie; -for what has the appellate court to review where the inferior court has not decided the case, but has refused to hear . it?”

Among numerous decisions in line with the opinions quoted are: Rex v. Gloucestershire, 1 Barnewall & Adolphus’ English Common Law Reports, 374; Ex parte Bradstreet, 7 Pet. 647, 8 L. Ed. 810; Railroad Co. v. Wiswall, 23 Wall. 508, 23 L. Ed. 103; Brown v. Kalamazoo Circuit Judge, 75 Mich. 274, 276, 42 N. W. 827, 5 L. R. A. 226, 13 Am. St. Rep. 438; Cox v. Hightower, 19 Tex. Civ. App. 536, 47 S. W. 1048; Kleiber v. McManus, 66 Tex. 48, 17 S. W. 249; Schultze v. McLeary, 73 Tex. 94, 11 S. W. 924; Aycock v. Clark, 94 Tex. 377, 378, 60 S. W. 665.

In the case last cited Chief Justice Gaines states the distinction between the power, distinctly affirmed, of the Supreme Court to compel a hearing and final determination by a trial court of a cause within the court’s jurisdiction, and the Supreme Court’s authority, emphatically disaffirmed, to review in a proceeding for mandamus the erroneous exercise by a trial court of judicial discretion.

Indeed, article 152S of the Revised Statutes expressly enjoins on the Supreme Court the duty to exercise the power to compel, by mandamus, a judge of the district court to proceed to trial and judgment.

It is ordered that tbie mandamus applied for by relator be granted, and, after service of the citation on the sureties which it is the ministerial duty of the district clerk to issue or on the appearance of the sureties, that the court proceed to hear and determine the issues joined or to be joined between the state and relator, or between the state and relator and her sureties, and to make final the judgment nisi or to vacate it and remit the amount of the bond in whole or in part, as the law and the facts may require. 
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