Another v. Speak
| Decision Date | 01 January 1852 |
| Citation | 8 Tex. 376 |
| Parties | MCKAY AND ANOTHER v. SPEAK AND ANOTHER. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
What was so obviously a mistake of the clerk (writing L. instead of S. for the initial of the defendant in the entry of judgment) and could be amended by the record will be considered as amended.
A middle name or initial is not known in law, and will not be noticed unless it should be made to appear that it has been the occasion of a different person from the one designed being injured thereby. (Note 76.)
Error from Cass.
J. H. Rogers and J. N. Ferris, for plaintiffs in error.
S. F. Moseley, for defendants in error.
A writ of error was sued out by the plaintiffs in error, but they failed to file the record. It was filed by the defendants in error, and submitted with a suggestion of delay.
On looking into the errors assigned there is one assignment as follows:
“That the note sued on was executed and signed by D. S. McKay and N. J. Johnson, and the judgment was entered against D. L. McKay and N. J. Johnson.”
On an inspection of the record the judgment does seem to give the letter L as the middle initial of McKay's name. It is however everywhere else in the record given as an S; and if that be the true letter it could be amended by reference to the previous part of the record, if at all material, because it is obvious that the judgment was designed to follow the record. The defendants made no defense in the court below, and have not followed their writ of error into this court. Under such circumstances I have no doubt that the judgment ought to be affirmed with damages. What was so obviously a mistake of the clerk and could be amended by the record will be considered as amended. A middle name or initial is not known in law, and will not be noticed unless it should be made to appear that it has been the occasion of a different person than the one designed being injured thereby.
The judgment is affirmed, with ten per cent. damages for delay.
Affirmed with damages.
HEMPHILL, C. J. I dissent from the judgment for damages.
NOTE 76.--Cummings v. Rice & Nichols, 9 T., 527; The State v. Manning, 14 T., 402; Stockton v. The State, 27 T., 86; Steen v. The State, 27 T., 86; Page v. Arnim, 29 T., 53.
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