
    (86 Tex. Cr. R. 413)
    SAUNDERS et al. v. STATE.
    (No. 5603.)
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1919.)
    1. Bail <&wkey;77(2) — Service os’ citation NECESSARY IN PROCEEDING FOB FORFEITURE.
    Under Code Cr. Proe. arts. 491, 492, providing for citation, and service, and under article 502, providing for default judgment when sureties on a bail bond who have been duly cited fail to answer and the principal also fails, judgment of forfeiture cannot be entered against the sureties on a bail bond who were not served with citation.
    2. Appeal and error <&wkey;662(2) — Recitals of JUDGMENT AS TO SERVICE OF CITATION TO FORFEIT BAIL WILL NOT PREVAIL AGAINST RECITALS IN SHERIFF’S RETURN.
    Recitals in a judgment forfeiting a bail bond as to service of citation will not on direct at-, tack, as writ of error, prevail against recitals in the sheriff’s return.
    Error from District Court, Cooke County; C. R. Pearman, Judge.
    Proceedings against Owen Saunders and others for forfeiture of bail bond. There was a judgment of forfeiture, and Owen Saunders and others bring error.
    Reversed.
    See,' also, 216 S. W. 870.
    J. T. Adams, of Gainesville, for plaintiffs in error.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

This cause is before us on writ of error, complaining of judgment entered on a forfeited bail bond. The plaintiff in error was a surety, and H. B. Porter the principal upon the bond.

The bond was executed by the principal, Porter, and by George Beck, Dan Skeams, and Owen Saunders as sureties, and the forfeiture and judgment nisi is against each of them, as is also the final judgment. Citation, however, appears to have been issued for all, but only served on Beck. The final judgment is by default, and the absence of service upon the plaintiffs in error renders the judgment voidable on writ of error. The statute (article 502, Code Crim. Proc.) provides for a default judgment “when the sureties have been duly cited and fail to answer, and the principal also fails to answer within the time limited for answering in other civil actions.” Other articles provide for citation and service. See articles 491 and 492.

The judgment recites that all were served. This recital would prevail against the sheriff’s return on the citation in a collateral attack upon the judgment. Not so, however, when, as in the present case, the attack is a direct one. Burditt v. Howth, 45 Tex. 466; Carlton v. Miller, 2 Tex. Civ. App. 619, 21 S. W. 697. See Rose’s Notes on Texas Reports, vol. 2, p. 641.

The error pointed out requires a reversal and remanding of the cause, which is ordered. 
      <3=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     