
    GRAMMER et al. v. STATE.
    (No. 6198.)
    (Court of Criminal Appeals of Texas.
    April 20, 1921.)
    1. Bail <&wkey;94 — Briefs must be filed in lower as well as appellate court on appeal from judgment on bail bond.
    On appeal from a judgment final on a forfeited bail bond, briefs must be filed by appellants in the lower court as'well as in the Court of Criminal Appeals; such appeal being in the nature of a civil appeal.
    2. Judgment &wkey;>l7(IO) — Sheriff’s return on citation held insufficient to support default judgment against sureties on forfeited bail bond.
    In view of Code Or. Proc. 1911, art. 492, providing that citation to sureties upon a forfeited bail bond shall be served and returned as in civil actions, sheriff’s return on such citation reading, “Came to hand on the 23d day of January, 1920, and executed on the 2d day of February, 1920, by delivering to the within names,” and containing the names of such sureties, held insufficient to support a judgment by default against the sureties.
    Appeal from Criminal District Court, Tar-rant County; Geo. E. Hosey, Judge.
    Action by the State of Texas against Lester Grammer and others on a forfeited bail bond. Judgment for the State, and the defendants appeal.
    Judgment set aside, and cause reversed and remanded.
    Baskin, Eastus & Greines, of Fort Worth, for appellants.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

This is an appeal from a judgment final on a forfeited bail bond in the criminal district court of Tarrant county.

It appears from the record that one Lester Grammer was charged in the criminal district court of Tarrant county with the offense of theft of property of the value of more than $50, and that he executed his bail bond in the sum of $750 with a number of sureties, and that when said case was called for trial, because of the nonappearance of the defendant in said cause, a forfeiture of said bail bond was taken, and thereafter a citation was duly issued, which was returned by the sheriff showing service upon all of the sureties except one who had removed from the state, and upon a hearing of this cause a judgment final was entered against all of said sureties except the one who had not been served, as to whom the cause was dismissed. None of the sureties made answer, but at the time of the entry of final judgment Hon. A. J. Baskin, an attorney of Fort Worth, appeared and as amicus curim gave notice of appeal to this court. Subsequently an appeal bond for costs only was entered into by the said sureties.

We are in doubt as to two propositions involved in this appeal. It has been held in a number of cases that an appeal in a case of this character is in the nature of a civil appeal, and that briefs must be filed by the appellants in the lower court as well as in this court. Heiman v. State, 70 Tex. Cr. R. 480, 158 S. W. 276; Thetford v. State, 74 Tex. Cr. R. 649, 169 S. W. 1153. This does not appear to have been done in the instant case, and it has been held that the appeal should therefore be dismissed.

We are also in doubt as to the extent of the authority and power of an amicus curise to give notice of appeal, which would hardly appear to be an act of friendship for the court rendering the judgment.

However, inasmuch as the judgment as rendered would be ineffective to support a levy of any character of process upon property of the defendant sureties, and because of the fact that a disposition of the case here would appear to be the most speedy and effective way of deciding the questions involved, we will proceed to render judgment.

The return upon the citation to the sureties appears to be as follows:

“Game to hand on the 23d day of January, 1920, and executed on the 2d day of February, 1920, by delivering to the within names.”

Then follow the names of the sureties and the attestation of the sheriff by a deputy. The return is wholly insufficient to support a judgment by default. It is provided by article 492 of our Code of Criminal Procedure that such citation shall be served and returned as in civil actions, and the question now before us has been substantially passed upon by this court in many cases. Harryman v. State, 57 Tex. Cr. R. 204, 122 S. W. 398; Fulton v. State, 14 Tex. App. 32; Middleton v. State, 11 Tex. 255; Couch v. State, 57 Tex. Cr. R. 134, 122 S. W. 24.

Because of the lack of a proper return upon said citation, the judgment by default would not be warranted, and the judgment is set aside, and the cause is reversed and remanded.  