Cowen v. State , 3 Tex. Ct. App. 380 ( 1878 )

White, J.

A scire facias, in order to sustain a judgment final by default, should show the nature and character of the undertaking upon which the judgment nisi was taken ; and the undertaking, whether recognizance or bond, should be substantially set forth, to enable the parties to know the foundation of the proceedings against them, and to enable the court to know upon what grounds the judgment is asked. It ought to follow the judgment nisi. In a word, it should state enough to answer the purposes of a petition and a writ of citation also. Boone v. Roberts, 1 Texas, 152; Harrison v. The State, 3 Texas, 190; Lawton v. The State, 5 Texas, 274; Jackson v. The State, 13 Texas, 218; Davidson v. The State, 20 Texas, 655; Cox v. The State, 25 Texas, 406; Cushman v. The State, 38 Texas, 181; Brown v. The State 43 Texas, 349.

The scire facias in the case we are considering is not sufficient, when tested by the requisites above set out.

The judgment nisi was made final only as to the sureties, and not against the principal also. This, it seems, would render the judgment erroneous. Blalock v. The State, 35 Texas, 89.

The judgment final should be set aside, and another scire facias should be issued upon the judgment nisi, in conformity with the rules above stated. The judgment is, therefore, reversed and the cause remanded for further proceedings.

Reversed and remanded.