This is a proceeding by scire facias to forfeit a recognizance given by Roy Simmons, as principal, and John H. Turley and Grus R. Schuster, as sureties.
May 19,1919, in the Circuit Court of Cooper County, Roy Simmons was convicted of felonious assault, and his punishment assessed at one hundred dollars’ fine. On the 22nd day of May the following recognizance was executed and filed with the clerk of the circuit court in the case:
“Be’it Remembered, that on the 19th day of May, 1919, in the Circuit Court of Cooper County, Missouri, Roy Simmons, the principal in the within recognizance, was tried in said court upon an information filed against him charging him with felonious assault, and that a jury was duly empaneled to try said cause, and said jury returned a verdict assessing a fine against said defendant of one hundred dollars and the costs to be taxed in said cause, and afterwards, to-wit, on the 19th day of May, 1919, the judge of said circuit court, by order duly made, granted a stay of execution to said defendant for ninety days, within which time said defendant is to pay said fine of one hundred dollars and the costs thereof.
*669“Now, therefore, if the said Roy Simmons, as principal and Gus Schuster and John Turley, as securities, shall pay said fine and costs within ninety days from this date, as provided in said order of said circuit court, then this recognizance shall he void; otherwise to remain in full force and effect in law.
‘ ‘ Roy Simmons (SEAL)
“Jno. H. Turley (SEAL)
“Gus R. Schuster (SEAL)”
On the 20th day of October, 1919', Simmons having failed to comply with the condition s of the bond, a forfeiture was entered.
On the 24th day of January, following, a scire facias was issued, directed to John H. Turley and Gus R. Schuster, sureties in the bond, notifying them to appear January 26th, the first day of the regular January term of court, and show cause why the judgment of forfeiture should not be made absolute. They failed to appear on that date and judgment was rendered against them. At the next May term the sureties appeared and filed a motion to set aside the judgment rendered against them; the motion was sustained, and they filed their answer. The State demurred to the answer, which being overruled, the State filed reply and the cause went to trial June 10, 1919; judgment was rendered against the sureties for the amount of the fine, one hundred dollars, and costs amounting to $75.25. At the time the recognizance was taken there was no order of court entered of record staying execution for ninety days, as recited in the bond. On the motion of the State, before entering judgment on June 10, 1920, the court entered a. nunc pro • tunc order amending the record so as to show that there was a stay of execution for ninety days, ordered May 19, 1919, the date of judgment, whereby Roy Simmons was convicted.
After the judgment rendered as aforesaid, John H. Turley and Gus R. Schuster, in due form appealed to this court. Two principal reasons are advanced for the reversal of the judgrnent: First, that the nunc pro tunc *670order of the court was not authorized by anything appearing in the record and, without the order of a stay of execution, no valid recognizance could be given; second, that the bond, in form, is not within the provisions of the statute and only provides for a condition which the statute does not recognize.
Statutory Conditions. I. The statute under which the bond was given, Section 5291, Revised Statutes 1909, provides that a court, or a judge or justice thereof, in certain cases, for good'cause shown, may grant a stay of execution for a definite period of time to be fixed by the court granting the same, not to exceed ninety days “upon the defendant or some person for him entering a recognizance conditioned for his surrendering himself in execution" at the time and place fixed by the judgment of such conviction or sentence on a day to be named in such order.”
It will be noted that the bond in this case, set out above, contains no condition that the defendant surrender himself at any time or place, but it is conditioned that he pay a fine of one hundred dollars and costs, and the sureties bind themselves to pay such fine in case of default.
The section of- the statute relating to the forfeiture of a recognizance, Section 5134, Revised Statutes 1909, provides that in ease of failure of the defendant to “appear for trial or judgment, or upon any other occasion when his presence in court may be lawfully rer quied,” his recognizance is forfeited and the court may proceed by scire f(acias to final judgment. It is clear that the condition of the bond in this case is not the one provided for in Section 5291, nor is it conditioned on any failure which would involve a forfeiture provided in Section 5134, so as to authorize a proceeding by scire facias against the sureties.
It is true that a recognizance, given under the statute, is not void so as to prevent the forfeiture, for irregularities for which the recognizance may be amended or *671omissions which might he supplied. [Newton v. Cox, 76 Mo. 352; State v. Wilson, 265 Mo. 1; State v Hoeffner, 124 Mo. 488.] An obligation of that character, “voluntary in its nature, definite in its terms, and taken for the State to afford the privilege of freedom for the principal therein, upon default being made by the latter, should be held binding upon the sureties, although its terms may not conform to the letter of the statute authorizing its execution.” [State v. Allen, 204 S. W. l. c. 722.]
But the bond in this case, purporting to be taken under the statute for the purpose indicated, is not merely irregular in that it fails to follow the letter of the statute, but is entirely foreign to the statute, and does not contain any conditions upon which such a recognizance may be taken. It is at variance with the statute, not merely in form but in substance and purpose. No proceeding by scire facias to forfeit is provided for. [State v. Stevens, 134 Mo. App. l. c. 119; State v. Crosswhite, 195 Mo. l. c. 14-15; State v. Woodward, 159 Mo. 680.]
It has been held that a recognizance is not vitiated by reason of its containing more than the statute prescribes because “the stipulation in the bond not required by a statute may be rejected as surplusage and the bond still be regarded as a statutory bond.” [Woods v. State, 10 Mo. l. c. 700.] Likewise, when a bond “falls short of the statutory enumeration in such manner as to be more favorable to the party executing it,” such party cannot complain because it contains enough to make him liable for the penalties prescribed. [Flint ex rel. Lumpkin v. Young, 70 Mo. 221, l. c. 226.] Those cases imply that a statutory forfeiture cannot be adjudged for failure to comply with a condition which the statute does not recognize.
The Statute of Jeofails, relating to bonds, Section 5019, Revised Statutes 1909, is mentioned in some of the cases as sufficient to cure irregularities and omissions in statutory recognizances. That section provides that: “No proceeding upon a recognizance shall be defeated *672. . . on account of any defect of form, omission of recital, condition of undertaking therein,” etc.
In this case the condition of the undertaking provided in, the statute was omitted entirely and a totally different undertaking inserted in the bond. Section 5019 could not correct that defect because the same section concludes as follows:
“So that it be made to appear from the whole record or proceeding that the defendant was legally in custody, charged with a criminal o'ffense, that he was discharged therefrom by reason of the giving of the recognizance, and that it can be ascertained from the recognizance that the sureties undertook that the defendant should appear before a court or-magistrate at a term or time specified for trial.”
' The curative part of that section cannot be applied to a bond unless it is conditioned that the defendant appear at a certain time, as provided in Section 5291. There is no theory upon which the proceeding by scire facias for a forfeiture of a recognizance could be authorized under the statute.
It is therefore unnecessary to inquire whether the nunc pro tunc entry was authorized by the files and record.
Liability at Common Law. II. It may be urged that the bond in this case is at least a common law bond in that it is a voluntary undertaking by the defendants upon certain conditions to do certain things, and the facts show the occurrence of the condition which would make them liable. [State ex rel. v. Frazer, 165 Mo. 242, l. c. 258; State to use v. Cochrane, 264 Mo. l. c. 593-4; Burton Machinery Co. v. Ruth, 196 Mo. App. 450, l. c. 465.] It is unnecessary to determine in this proceeding whether the bond is a common law undertaking upon which the sureties would be liable, because in such case there could be no proceeding of scire facias for a forfeiture under the statute, a proceeding which applies only to a statutory recognizance.
*673The judgment is reversed.
Bailey and Mosley, GO., concur.
The foregoing opinion by Whits, 0., is adopted as the opinion of the court.
All of the judges concur.