
    Ben Jack Cage et al v. State.
    No. 31,269.
    December 16, 1959.
    
      
      P. P. Ballowe, Dallas, for appellants
    
      Henry Wade, Criminal District Attorney, Phil Burleson, John J. Fagan, Assistants District Attorney, Dallas, and Leon Douglas, State’s Attorney, Austin, for the state.
   WOODLEY, Judge.

This is an appeal by the sureties from a forfeiture of an appearance bond in the sum of $1,000 conditioned for the appearance of Ben Jack Cage to answer a felony indictment in Criminal District Court No. 2 of Dallas County.

The state concedes that because of an omission in the judgment nisi of the statutory requirement, that it recite that the forfeiture will be made final “unless good cause be shown why the defendant did not appear,” the forfeiture should be set aside and this case remanded to the trial court.

Appellants oppose the state’s motion and say that on this appeal other important questions raised by them should be passed upon.

With these pleas before us, the state has filed a subsequent motion that the appeal be dismissed as moot, alleging that the sureties have paid the total amount of the bond into the court.

Appellants oppose this motion contending that the costs have not been paid and that the $1,000 was paid by one surety alone in reliance upon the state’s confession of error.

Because of the controversy regarding the payment of the principal amount of the bond, the state’s motion to dismiss the appeal as moot will be overruled.

For the same reason, we will not in this appeal pass upon grounds for reversal other than the omission of the statutory requirement in the judgment nisi which the state confesses to be error requiring reversal.

The judgment is reversed and the cause remanded.  