West v. State

Citations

• 75 Fla. 342

Syllabus

<p>1. A plea of nul tiel Record is a proper plea in a scire facias on a recognizance bond, and it is error for the Judge- to sustaiin a demurrer to such plea. But where it appears on the face of the record that such plea was interposed for the purpose of proving a variance between the certificates of bail bond forfeiture filed by the Judge and the scire facias and the appearance bond, and the State offers in evidence the certificate of the Judge, together with such bail bond, which show upon their face the variance, and the defendants below object to the introduction of said bond and certificate on the ground of such variance, and thei trial judge overruled such objections, holding that as a matter of law the variance is immaterial, then the error in sustaining the demurrer to such plea is harmless, beqause the defendants, by their objection to the evidence upon the ground that there is a variance, received all the> benefits which they could have had under the plea of nul tiel record.</p> <p>2. The estreatment of the appearance bond in this case was a statutory proceeding. The proper certificate 'of the Judge, together with the bond itself, was filed in the Circuit Court. The proper writ or scire facias was issued by the clerk of the Circuit Court, and served by the sheriff upon the defendants. The defendants filed several pleas, among them, a plea of non est factum. Issues was joined on this plea. .The burden, primarily, of disproving this plea rested upon the S^ate. The State 'offered in evidence the said certificate of the Judge and the appearance bond. Objection was made to the introduction of the bond on the ground that the execution had not been proven. The objection was overruled. No evidence was offered by defendants, no jury was requested, land the case was tried by the Judge, who entered judgment for the State: Held, that the Judge properly overruled the objection that the execution of the bond had not been proven. The certificate of the Judge recited the