Marx v. State

Mississippi Supreme Court April 15, 1884

Marx v. State, 61 Miss. 478 (Miss. 1884)

Cooper

Opinion of the Court

Cooper, J.,

delivered the opinion of the court.

The scire facias does not recite the day or term of the court on which the judgment nisi was taken. It is apparent that the attention of the court was not directed to this fact, but it nevertheless exists, and the defendant having interposed a plea of nul tiel record *481devolved upon the State the necessity of amending the writ before proceeding further against him. The district attorney asked and obtained leave to amend the writ in another particular, but it was not in fact amended, and if it had been the error noted would not have been cured. It was error to render the final judgment on the record shown. Bridges’ Case, 24 Miss. 153; Douthit’s Case, 30 Miss. 133. The objections actually made in the lower court were not well taken.' It was not necessary for the State to proceed to judgment against the principal or the other sureties in the bond, Saffold v. The State, 60 Miss. 928. On the return of the case to the lower court the writ may yet be amended. Pounds v. The State, 60 Miss. 925.

Judgment reversed.

Reference

Full Case Name: R. M. Marx v. State
Status: Published
Syllabus: 1. Scire Facias. Not reciting date of judgment nisi. Judgment final. When the scire facias fails to recite the day or term of court when the judgment nisi was rendered, and a plea of nul tiel record is interposed, it is error to render judgment final without first amending the writ. 2. Same. Appellate proceedings. Amendment. When the record fails to show the date of the judgment nisi in proceedings on a forfeited recognizance the ease will be reversed on appeal, and amendment allowed when the case returns to the lower court. 3. Recognizance. Judgment against one surety. Dismissal as to others. Where the return on the scire facias shows that the principal and all the sureties on the bond, except one, could not be “ found,” it is not error to dismiss as to those not “ found” and to proceed to judgment against the surety served. Pounds v. The State, 60 Miss. 925.