Abilene Independent Telephone & Tel. Co. v. Williams

• Decision Date: 06 April 1921
• Docket Number: (No. 2728.)
• Parties: ABILENE INDEPENDENT TELEPHONE & TELEGRAPH CO. v. WILLIAMS et al.
• Court: Texas Supreme Court

229 S.W. 847

ABILENE INDEPENDENT TELEPHONE & TELEGRAPH CO. v. WILLIAMS et al.

(No. 2728.)

Supreme Court of Texas.

April 6, 1921.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by the Abilene Independent Telephone & Telegraph Company against John Williams and others to restrain the collection of a judgment. Judgment for plaintiff was reversed by the Court of Civil Appeals (168 S. W. 402), and plaintiff brings error. Affirmed.

Ben L. Cox, of Abilene, for plaintiff in error.

Scarborough & Hickman, of Abilene, for defendants in error.

GREENWOOD, J.

This suit involves the single inquiry as to the binding effect of a judgment by default upon a corporate defendant, intended to be sued, and actually served with citation, which showed it was the identical party from whom a recovery was sought, where the defendant is misnamed in the petition, citation, and judgment.

The object of the suit, which was brought by the plaintiff in error, Abilene Independent Telephone & Telegraph Company, against defendants in error, John Williams and the sheriff of Taylor county, was to enjoin the collection from the plaintiff in error of a judgment of the district court in favor of Williams in a cause wherein the defendant was named as the Abilene Independent Telephone Company.

The ground for the injunction, under facts presenting no substantial conflict, was that no judgment had been rendered, and no suit had been brought, and no citation had been issued or served, against the Abilene Independent Telegraph & Telephone Company by its true corporate name.

A corporation named "Abilene Telephone Company" was engaged in the operation of telephone lines at Abilene from 1885 to 1895, when its franchise was forfeited and it retired from business. In 1910 the "Abilene Independent Telephone & Telegraph Company" was chartered in Missouri, and took out a permit to do business in Texas, under which it has since owned and operated lines of telephone at Abilene. In May, 1911, John Williams was in the employ of the "Abilene Independent Telephone & Telegraph Company." On February 15, 1913, John Williams filed a petition in the district court of Taylor county, complaining of the "Abilene Independent Telephone Company," for the recovery of $27,000 damages for personal injuries alleged to have been sustained by him while in defendant's employment as a lineman in Abilene, as the proximate result of acts of negligence of defendant, acting through its foreman. The petition recited that the defendant, of whom the recovery was sought, was and had been doing a general telephone business in Abilene. Citation issued on this petition, whereby the officer was commanded to summon the "Abilene Telephone Company" to appear and answer the petition. The citation gave the name of the defendant as "Abilene Telephone Company." In stating the nature of the suit, the petition was copied in full in the citation. The citation was returned served on the "Abilene Independent Telephone Company by delivering to Gus Klotz, local manager for said company at Abilene, Texas, the within named defendant," in person, a true copy of the writ. On the date of service of the citation Gus Klotz was the general manager of plaintiff in error. At the return term of the district court, the attorney for plaintiff in error expressly declined to appear in its behalf, but as a friend of the court he exhibited a charter showing the true name of plaintiff in error to be "Abilene Independent Telephone & Telegraph Company." After hearing evidence, the trial court fixed the damages sustained by John Williams at $7,500, and judgment was entered in his favor, and execution was ordered to issue for that sum against the defendant, "Abilene Independent Telephone Company."

The above facts admit of no other conclusion than that plaintiff in error was sued by a name different from that stated in its charter, and, further, that neither the petition nor the citation left in doubt the identity of the plaintiff in error as the party intended to be sued. Under that state of facts, it was clearly obligatory on plaintiff in error to appear and answer the plaintiff's petition, in obedience to the citation served upon it, or else be bound by the judgment to be entered on its default. No more can in reason be required than that a corporate defendant be fully informed that suit has been brought against it. If, with that information, it elects not to interpose timely objection to a mistake in its name, it ought to be treated as having waived the mistake.

The misnomer of a corporation defendant has no different effect from the misnomer of an individual defendant. Hoffield v. Board of Education, 33 Kan. 644, 7 Pac. 216. The misnomer of either, which cannot mislead, merely entitles the defendant to abate the proceeding until the misnomer be...