
    ADAMS v. STATE.
    (No. 4411.)
    (Court of Criminal Appeals of Texas.
    March 28, 1917.)
    1. Stipulations <&wkey;14(12) — Filing op Bribes.
    Appeal from county court will not be dismissed because of defendant’s failure to file briefs in such court on appeal from the recorder’s court, this having been under agreement between the counsel in the lower' court waiving such filing, and providing that they may be filed in the Court of Criminal Appeals.
    [Ed.-Note. — For other cases, see Stipulations, Cent. Dig. §§ 36, 37.]
    2. Bail &wkey;>84r-Forfeiture op Bond — Sickness as Exoneration.
    Under Code Or. Proc. 1911, art. 600, providing that sickness of the principal on the bond will excuse his nonattendance and exonerate him and his sureties from liability on the forfeiture taken on the bond, where he appears before final judgment to answer the accusation against him, he so appearing, indicating a willingness to try Ms case, and Ms uncontra-dicted testimony showing he was sick at the time his case on appeal from the recorder’s court to the county court was set for trial, at which time on his nonappearance judgment nisi was entered against him and the sureties on his appeal bond, it was error to enter final judgment against him and his sureties.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 379-381.]
    Appeal from Jones County Court; J. F. Lindsey, Judge.
    S. E. Adams, convicted in the recorder’s court, appealed therefrom to the county court, where final judgment was rendered against him and the sureties on his appeal bond, and he again appeals.
    Reversed and remanded.
    E. T. Brooks, of Anson,, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted in the recorder’s court of the town of Anson for violating an ordinance relating to the speed of automobiles. He prosecuted an appeal to the county court of Jones county, and that court entered a judgment nisi and final judgment of forfeiture of his appeal bond.

His case was set for trial September 1, 1916, and, he failing to appear, a judgment nisi was then entered against him and his sureties. Before the judgment was made final, he appeared in person and filed his sworn motion in writing in which he stated that at the time the forfeiture .was taken he was in the city of Ft. Worth sick and unable to attend court; that he advised the county attorney of his condition by letter, asking for continuance or postponement and requesting the county attorney to wire him at his expense in the event that such arrangement could not be. made. The county attorney received the letter hut did not wire the appellant, was not present when the forfeiture was taken, and stated that he forgot about the matter. The only testimony heard on the trial was that of the appellant and the county attorney, appellant’s testimony showing without dispute that he was sick at the time, and that of the county attorney showing he received the letter as above stated. There was no contradiction of appellant, and no testimony or circumstances are disclosed from the record throwing doubt upon the truth of his statement. Article 600, O. C. P., provides that the sickness of the principal on the bond will excuse his attendance .where he appears before final judgment to answer the accusation against him. The evidence shows that appellant did appear at the time he presented his motion to set aside the judgment nisi; that the court was then in session ; and that he indicated a willingness to try his case then, or at such date as the court might fix.

The Assistant Attorney General suggests that appellant’s brief should not be considered and the appeal dismissed because of the failure to file the briefs in the court below. There is a written agreement of the attorneys representing the appellee and the appellant in the lower court to the effect that the filing of the briefs with the county clerk is waived and that they may be filed in this court. In view of this agreement, we overrule the motion to dismiss the appeal.

Under the statute mentioned and on the authority of Strey v. State, 27 S. W. 137, Reddick v. State, 21 Tex. App. 268, 17 S. W. 465, Thompson v. State, 17 Tex. App. 318, and other cases cited in Vernon’s Ann. O. G. P. under article 511, subdiv. 3, p. 268, the trial court, in our opinion, committed error in entering final judgment against the appellant and his sureties; and, because of such error, the judgment of the lower court is reversed, and the cause remanded.  