Slocumb and another v. The State, 11 Tex. 15

Hemphill, Ch. J. This is a judgment, on a bond taken by the Sheriff by virtue of

Article 2889. It is assigned 1st. That the bond was not certified and returned to the District Court as the law directs. 2nd. That it was not filed by the Clerk the day it came to his hands, but was erroneously ordered by the Court to be filed “ nunc pro tunc.” 3rd. That judgment was improperly rendered against plaintiffs, who were securities in the bond, after an alias capias had been ordered to issue against Winn, the principal. There is nothing substantial in any of these grounds.

The statute requires the bond to be returned and certified to the Court, without stating the mode, or form, in which this shall be done. Here the Sheriff certifies on the capias, that he has taken the bond; and the 'bond is marked filed, by the Clerk. This is sufficient to show that it is the bond of the parties, given in the cause, among the papers of which it is found. There was no error in ordering the bond to be filed “ nunc pro tunc” No such order appears, however, of record. Nor is there anything which shows the necessity of such order.

The bond was executed the 30th December, 1851, and is marked filed, the same day, with the addition of “ nunc pro tunc.” This addition may be rejected as surplusage, as there is no apparent necessity for any such qualification of the filing. There is nothing in the fact, that an alias capias had been ordered to issue. It was to the benefit of plaintiffs, as the principal might have been brought in before the entry of final judgment on the bond. Judgment affirmed.