John Brumme et al. v. The State, 39 Tex. 538

Ogden, P. J. There are but two assignments of error in the records of this cause. One is in relation to the validity and sufficiency of the bond sued on; but we think that

Article 2551, Paschal’s Digest, has settled all questions presented in this assignment. It provides that “no •error of form shall vitiate such a bond, and no error in the proceedings prior to the execution of the bond shall be available as a defense in an action thereupon.” The other assignment is that “the court erred in rendering judgment in this case without the intervention of a jury.” This assignment is not so easily, answered in favor of the judgment. The judgment was rendered upon a conditional peace bond, by default, without the intervention of a jury.

This bond was not a liquidated demand, and could not be •so considered until proof of a breach of its conditions. There was no proof of the breach of the terms of the bond, and until that proof is made—which is a question of fact to be determined by a jury—there can be no legal forfeiture or judgment on the bond.

Article 2555, Paschal’s Digest, provides that it shall only be necessary, in order to enable the State to recover, to prove “that the defendant did commit the offense which he bound himself not to commit, or failed to keep the peace according to his undertaking.” This statute clearly requires that proof shall be made of a breach of the conditions of the bond before a judgment can be rendered thereon, and the breach is a question of fact to be found by the jury.

There was no jury impanneled in this case, and no proof of a breach of the conditions of the bond, and therefore the judgment by default is erroneous, and must be set aside. We are invited to consider and decide the question of the constitutionality of the recorders’ and mayors’ courts in cities, but that question is not properly presented in this record, and we do not feel inclined to consider or attempt to determine so grave a question without due consideration in a case requiring its determination. The judgment is reversed and the cause remanded. Reversed and remanded.