
    REEVES et al. v. STATE.
    (No. 11679.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    1. Bail <§=>77(2) — 'When valid nisi judgment declaring forfeiture of appearance bond exists, state may not enter second nisi judgment.
    As long as valid subsisting nisi judgment is in existence declaring forfeiture of appearance bond, state is without authority to take second forfeiture and enter second nisi judgment.
    2. Bail <§=>77(2) — Where valid nisi judgment was entered at June term, its vacation and entry of second nisi judgment at subsequent term was unauthorized (Code Cr. Proc. 1925, art. 435).
    Where valid nisi judgment declaring forfeiture of appearance bond was taken by state at June term, but same was mistakenly and erroneously entered by clerk in minutes, who made same read $1,000 instead of $2,000, and court at subsequent term summarily vacated judgment and entered another, held that second judgment was void under Code Cr. Proc. 1925, art. 435, providing judgment declaring forfeiture shall not be set aside because of any defect of form, but such defect may at any time be amended at direction of court, in view of article 436.
    3. Bail <§=>93 — Final judgment based upon nisi judgment, invalid because of existence of valid nisi judgment rendered at prior term, held void (Code Cr. Proc. 1925, art. 435).
    Where valid nisi judgment declaring forfeiture of appearance bond was in existence, and at subsequent term second unauthorized nisi judgment was entered upon which final judgment was entered, held that such final judgment, being based upon void nisi judgment, was wholly invalid and of no effect, by virtue of Code Cr. Proc. 1925, art. 435.
    4. Bail <§=>77(2) — Where clerk makes mistake in entering nisi judgment forfeiting appearance bond, and state wishes to correct same at subsequent term, proper procedure is to amend (Code Cr. Proc. 1925, art. 43.5).
    Where clerk makes mistake in entering nisi judgment declaring forfeiture of appearance bond, and state desires to correct same at subsequent term, proper procedure is to amend under Code Cr. Proc. 1925, art. 435, after notice to all parties.
    Commissioners’ Decision.
    Appeal from .Criminal District Court No. 2, Dallas County; C. A. Pippen, Judge.
    
      R. M. Reeves was indicted for a felony, and lie gave an appearance bond with Fred W. Cathey and Walter Barnes as sureties. From final judgment of forfeiture, accused and his sureties appeal.
    Reversed and remanded.
    J. D. Kugle, W. B. Harrell and Barry Miller, all of Dallas, for appellants.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

The indictment, appearance bond, and parties are all identical with those in cause No. 11436, 4 S.Wi.(2d) 49, opinion delivered on this day, to which reference is here made for a more complete statement of the facts.

A brief restatement of the main facts, with some additional facts, is perhaps necessary. On the 22d day of June, 1927, a judgment nisi was entered against appellants for the sum of $1,000 upon forfeiture of an appearance bond which was written for $2,000. At the next succeeding term of the court, viz. the July term, a final judgment for $2,000! was entered, without any correction or amendment of the nisi judgment. The sureties filed exceptions to such judgment and gave notice of appeal and filed their supersedeas appeal bond. Thereafter an prder was entered as of July 25, 1927, reciting:

“Whereas the amount of the bond filed in this cause was $2,000.00 and whereas the clerk in entering the judgment nisi erroneously placed the amount at $1,000.00, when in' truth and in fact-the judgment nisi was for the amount of the bond, as shown on the docket entry at the time of the rendition of said judgment, which said amount was $2,000.00, and it clearly appearing to the court that the word ‘$1,000.00.’ in said judgment was a clerical error and that the real judgment was for the sum of $2,000.00, it is therefore ordered, adjudged, and decreed by the court that the district clerk correct said judgment nisi so as to conform to the actual judgment of the court,” etc.

This last order was entered without any notice to the sureties. Thereafter, on the 17th day of September, 1927, the court of his own motion summarily entered an order vacating both the nisi judgment entered at the June term of the court and the final judgment rendered thereon July 20, 1927. A new forfeiture was then taken of the bond, scire facias, issued, and a second nisi judgment entered, on the 17th day of September, 1927, and was made final on November 5, 1927, against appellant’s sureties, from which judgment this appeal is prosecuted.

The decision of this case rests upon the answer to the question of whether or not the trial court was vested with the power and authority to vacate its nisi judgment entered at the June term, 1927, of the district court by an order entered at the succeeding term of the said court under the facts and circumstances above set forth.

We held, in cause No. 11436, this day decided and already referred to, that the court had jurisdiction and authority over its orders, judgments, and decrees during the term at which same were rendered, but on this appeal,'there already having been made and entered a nisi judgment at the preceding term of the court, appellants claim that the district court was without authority of law at the succeeding term of the court to vacate such nisi judgment, and that its second forfeiture and second entry of a nisi judgment was illegal and void because there already existed a valid nisi judgment made at a preceding term of the court. That as long as a valid and subsisting nisi judgment is in existence the state is without authority to take a second forfeiture and enter a second nisi judgment is well settled. Burris et al. v. State, 34 Tex. Cr. R. 551, 31 S. W. 395; Edwards v. State, 100 Tex. Cr. R. 582, 272 S. W. 175. The record aflirmatively discloses that a valid and correct judgment was in fact taken by the state at the June term, but that same was mistakenly and erroneously entered by the clerk in the minutes, who made same read $1,'000, instead of $2,000. If the nisi judgment as exhibited in the minute's at the June term of the court was a clerical mistake and was defective in form only as distinguished from a void judgment,' we think under the plain terms of the statute that the court lacked the power and authority to'vacate same, though he has express authority to amend and correct same upon proper notice. The recitals of the order of the court quoted above amending this nisi judgment affirmatively show that it was not a void judgment and that in fact a valid judgment was taken, made defective by the carelessness of the clerk in entering the same. There has been laid upon the trial,courts by the terms of article 435, O. O. P. 1925, an express inhibition against vacating such a judgment. This article reads in part as follows:

“The judgment declaring the forfeiture * * * shall not be set aside beeausp of any defect of form; but such defect of form may, at any time, be amended under the direction of the court.”

This article has been set into chapter 4, tit. 7, O. O. P. 1925, dealing with bond forfeitures, and made to apply particularly to judgments of this character. This has some significance; and may have been because the Legislature regarded them as of that interlocutory character which' it seems might be vacated after the end of the term under the rule at common law, and decided upon the enactment of a statutory rule prohibiting such action. Reasons might be given why a valid forfeiture of a bond, penal in its nature, ought not to be vacated at the pleasure of the court because of the possible embarrassment it might occasion the sureties. Such bonds are to be strictly construed.

Article 436, O. 0. P. 1925, lays down the following rule:

‘•The following causes, and no other, will exonerate the defendant and his sureties from liability upon the forfeiture taken.”

It then specifically points out the only defenses which will authorize the court to declare invalid and vacate such nisi judgment. It seems strange that the Legislature should see fit to enact article 435, applying particularly to judgments of the character under discussion, if its terms were not meant to be mandatory. In our opinion such was the intention of the Legislature. It therefore follows that the order of the court, summarily vacating the nisi judgment made at a previous term of the court,- was void. As before stated, as long as a valid nisi judgment was in existence, a second one was unauthorized, and the final judgment from which this appeal was taken, being based upon such a nisi judgment, was wholly invalid and of no effect. The proper procedure for the state to have taken was to amend and correct the nisi judgment taken at the June term, 1927, after notice to all parties. Gause v. State, 60 Tex. Cr. R. 221, 131 S. W. 605. Such a procedure may still be followed, in our opinion, by the state.

Because the court was without authority to enter the final judgment for the reasons above pointed out, the judgment of the trial court is reversed, and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals-has been examined by the judges of the Court of .Criminal Appeals and approved by the court. 
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