
    FINLEY et al. v. STATE.
    (No. 6222.)
    (Court of Criminal Appeals of Texas.
    April 27, 1921.)
    1. Bail <&wkey;94 — Sureties entitled to have review of judgment either by appeal or writ of error.
    Under Vernon’s Ann. Code Cr. Proc. 1916, arts. 960-962, sureties may take a default judgment against them on a bond to the appellate court for review either by direct appeal or by writ of error.
    2. Bail <&wkey;93 — Sureties must each be served with copy of seire facias writ before default judgment can be taken.
    A default judgment against sureties on bond of an accused who failed to appear must be reversed where it does not appear from the officer’s return that the sureties were each served with copy of the scire facias writ, under Vernon’s Ann. Code Cr. Proc. 1916, art. 492.
    Error from District Court, Cooke County; C. R. Pearman, Judge.
    Scire facias proceeding by the State against A. Q. Finley and another, sureties on the bond of E. J. Hancock, who was under indictment and failed to appear. Judgment for the State, and the sureties bring error.
    Reversed and remanded.
    J. T. Adams, of Gainesville, for plaintiffs in error.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   HAWKINS, J. L. J.

Hancock was under indictment in Cooke county for the fraudulent disposition of mortgaged property, and entered into bond with the appellants herein, A. Q. Finley and A. H. Hancock, as sureties. When the case was called for trial the defendant. failed to appear; bond was forfeited and judgment nisi rendered; scire fa-cias writ was served on the sureties, and bears the following return by the sheriff: “Came to hand the 15th day of June, 1920, at 5 o’clock p. m.; executed October 18, 1920, by delivering to A. Q. Finley and A. H. Hancock in person a true copy of this writ.”

At the next term of court judgment final by default was rendered. The sureties are seeking to have the matter reviewed by writ of error proceeding. Petition for writ of error was filed in the district court of Cooke county on February 17, 1921, and the transcript is on file in this court within the 90 days required by the rules of the Supreme Court in civil cases, and briefs have been filed both in this court and the court below. Plaintiffs in error have brought themselves within the rules laid down in case of Ayers v. State, 66 Tex. Cr. R. 281, 146 S. W. 171. Under articles 960, 961, and 962, Vernon’s C. C. P., the sureties may bring the case to this court for review, either by direct appeal or by writ of error. Complaints are made as to the form of the judgment nisi and final judgment, but we do not discuss them, merely calling attention to the criticism in order that the defects may be corrected or avoided in subsequent proceedings.

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. Article 492, Vernon’s C. C. P.; Fulton v. State, 14 Tex. App. 32, where the return is almost an exact duplicate of the one in the instant case; Couch v. State, 57 Tex. Cr. R. 134, 122 S. W. 24; Harryman v. State, 57 Tex. Cr. R. 204, 122 S. W. 398; Mansfield v. Security Trust Com. (Tex. Civ. App.) 175 S. W. 771; Kellam v. Trail (Tex. Civ. App.) 185 S. W. 988; Holliday v. Steele, 65 Tex. 388.

By all the foregoing authorities and many others which could be cited, the service was insufficient to support a judgment by default, and the judgment of the trial court must be reversed, and the cause remanded. 
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