Opinion
No. 32981.
March 22, 1961.
Appeal from the Criminal District Court No. 3, Harris County, Miron A. Love, J.
Dickson Associates, Houston, (by Bill M. Dickson, Houston, of counsel), for appellant.
Frank Briscoe, Dist. Atty., Walter A. Carr, Carl E. F. Dally, Assts. Dist. Atty., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
This is an appeal from a bond forfeiture.
Upon the failure of the principal to appear, his $2,500 appearance bond was forfeited and judgment nisi was taken on April 17, 1959. Judgment final was rendered June 1, 1960, but no entry thereof was made in the records of the court until September 26, 1960 which was in another term of said court.
The state's contention that appellant's appeal bond was not timely filed cannot be sustained in view of Rule 306b, Texas Rules of Civil Procedure. Appellant's appeal bond was filed on November 10, 1960 within 45 days of entry of judgment nunc pro tunc on September 26, 1960.
The sureties, K. M. Mosk and T. Y. Moore, appeared in person and by their attorney and announced ready for trial on June 1, 1960, when the court rendered final judgment. They went to trial on their original answer which consisted of a general denial.
The sureties contend that the trial court erred in entering the nunc pro tunc judgment of September 26, 1960 because no notice of the nunc pro tunc proceedings was ever given to them. They further insist that the trial court erred in dismissing their motion for new trial filed October 6, 1960 wherein they sought to interpose defenses to the state's cause of action.
The record shows that no notice of any application for or the entry of judgment nunc pro tunc was given the sureties.
A nunc pro tunc judgment entered without notice will not be set aside unless the appellants could have shown a defense had they had notice. 8 Tex.Jur.2d 195, Sec. 69; Aldridge v. State, 123 Tex.Crim. R., 58 S.W.2d 522. In the absence of any affirmative defenses on the main trial, the sureties are precluded from interposing any defenses, if any, on the entry of the nunc pro tunc judgment. 25 Tex. Jur. 417, Sec. 48; 3 Tex.Jur.2d 634, Sec. 374; Miller v. Trice, Tex.Civ.App., 219 S.W.2d 229. Hence there was no error in dismissing the motion for new trial on October 14.
The judgment is affirmed.
Opinion approved by the Court.
WOODLEY, P. J., absent.