McCallum v. State , 417 S.W.2d 164 ( 1967 )

OPINION

WOODLEY, Presiding Judge.

This is an appeal from an order overruling petition for bill of review filed by John T. Boyce, Surety on the appearance bond of' Bobby Don McCallum, forfeiture of which was affirmed by this court in McCallum et al. v. State of Texas, Tex.Cr. App., 411 S.W.2d 361.

The ground upon which the surety sought to have the trial court set aside the judgment entered against him after affirmance by this court is that at the time the judgment nisi was made final the principal was. in custody of the sheriff.

We find no merit in such contention.

Judgment nisi was entered when the principal failed to appear on August 3, 1966, and was made final on September 22, 1966. Appellant John T. Boyce filed super-sedeas bond on appeal from this judgment, with Bill McMahan and Marvin Shwiff as his sureties.

A similar supersedeas bond on this appeal with the same sureties was filed and approved.

The judgment is affirmed.

Appellant having superseded the judgment by supersedeas bond, judgment is rendered against his sureties thereon for the performance of the judgment of forfeiture. Rules of Civil Procedure 435.