John S. McClellan v. The State, 22 Tex. 405

Bell, J. The petition alleges that the appellant, McClellan, and one Martin, “are indebted to the State of Texas in the “sum of two hundred dollars, for so much money had and “received by them, for the use and benefit of the said State.” The petition then explains the circumstances, under which the said sum of money came into the hands of the said McClellan and Martin.

The petition states that one McFarland was arrested, and brought before a justice of the peace of Bexar county, on a charge of burglary, and was required to give bond for his appearance at the next term of the District Court for that county; that McFarland gave bond, and that McClellan and Martin became his sureties on the bond; that McFarland deposited with them the sum of two hundred dollars, to secure them against the consequences of the suretyship. The bond is made a part of the petition.

It is in the usual form, and binds the principal, McFarland, to appear at the next term of the District Court for the county, to answer such charge as the grand jury may prefer against him. The petition alleges, that “the conditions of the bond were not complied with by McFar“land, nor has he ever made his appearance up to the present “time.” The petition does not allege that McFarland was indicted by the grand jury. The only allegation of the breach of the bond, is, in the general terms above quoted. There was a general demurrer filed by the defendants, hut it does not appear to have been acted on by the court.

The defendants answered further, denying all the allegations of the petition, and pleading also the statute of limitations. There was a trial and verdict for the State. There was no motion for a new trial, and the record contains no statement of facts. The error assigned and relied on, is, that the petition discloses no cause of action, there being no allegation that McFarland, the principal in the bond, was indicted by the grand jury. The petition ought to have stated distinctly the facts, which constituted a breach of the bond.

The material facts were, that McFarland was indicted, and failed to make his appearance to answer the indictment. There was, however, an allegation, in general terms, that McFarland did not comply with the conditions of the bond, and we think the petition might have been held sufficient, upon general demurrer. The general demurrer, however, does not appear to have been relied on in the court below; and we are clearly of opinion, that the verdict cures the defective allegations of the petition. In the case of De Witt v. Miller, 9 Tex.

Rep. 239, this court said, “the ver“dict or decree cures all defects, imperfections, or omissions, “in the petition or statement of the cause of action, whether of “substance or of form, if the issues joined be such as require “proof of the facts imperfectly stated, or omitted; though it “will not cure or aid a statement of a defective title or cause “of action.” Such is the true rule to be deduced from the authorities, and from the elementary writers on this subject.

In the present case, the fact that McFarland had been indicted, was involved in the issue submitted to the jury, and must have been found by them, before they could give their verdict for the State. If there had been special exceptions to the petition, in the court below, the State’s attorney would have had an opportunity to amend, and to have stated the cause of action with more precision. There having been no demurrer relied on in the court below, we are of opinion, that the deficiencies of the petition are cured by the verdict; and the judgment is therefore affirmed. Judgment affirmed.