Butler v. Express Pub. Co., 10344.

• Decision Date: 01 March 1939
• Docket Number: No. 10344.,10344.
• Citation: 126 S.W.2d 713
• Parties: BUTLER v. EXPRESS PUB. CO.
• Court: Texas Court of Appeals

126 S.W.2d 713

BUTLER v. EXPRESS PUB. CO.

No. 10344.

Court of Civil Appeals of Texas. San Antonio.

March 1, 1939.

Rehearing Denied April 5, 1939.

Appeal from District Court, Bexar County; John F. Onion, Judge.

Libel suit by Maude F. Butler against the Express Publishing Company. From a judgment in favor of the defendant, the plaintiff appeals.

Judgment reversed, and cause remanded.

Joe Burkett, of San Antonio, for appellant.

Denman, Franklin & Denman, of San Antonio, for appellee.

SLATTON, Justice.

Maude F. Butler filed suit in one of the district courts of Bexar County on January 13, 1936, in which the San Antonio Express and Evening News were named defendants. Thereafter citations were issued; one commanding the San Antonio Express, a corporation, to appear and answer, and one commanding the Evening News, a corporation, to appear and answer. The Express Publishing Company filed an answer on February 6, 1936; on March 1, 1937, Maude F. Butler filed her first amended original petition in which the Evening News was omitted as a party defendant and the only defendant named was the Express Publishing Company, a corporation. The Express Publishing Company filed an answer to this pleading on March 17, 1937. In the original petition the defendants were alleged to be the owners and publishers of certain newspapers known as the San Antonio Express and Evening News, and were operating and distributing such papers throughout the City of San Antonio on the 6th, 7th and 8th of December, 1935. The pleader continues to allege the contents of such published articles and avers facts which are claimed to show said publications to be libelous. The amended original petition seems to be identical with the original petition, except the following paragraph which appears in the amended petition: "Comes now, plaintiff, complaining of the Express Publishing Company, and is hereinafter styled defendant, and for cause of action will show unto this court, that she has been given leave to amend her petition against the Express Publishing Company in the above numbered and entitled cause, and the following pages are a true and correct facsimile of plaintiff's original petition."

In the second answer filed by the Express Publishing Company the statute of limitations applicable to libel was pleaded by special exception. The trial court being of the opinion that the exception was good, sustained the same and dismissed the suit. The question presented is a narrow one. When the original petition was filed citation was issued and served, undoubtedly upon the Express Publishing Company, at least the Express Publishing Company filed an answer. In such answer no exception was urged upon the ground of the misnomer. There is no contention that the amended pleading presented a different cause of action. It affirmatively appears from the pleadings filed that it was intended to sue the corporation, or corporations, that published the newspapers in which the alleged libelous articles were printed. The intention of Maude F. Butler to sue such corporation is clear. That it was so understood by the appellee is clearly shown by its answer filed upon receiving the summons or citation. That it did not object to being sued in an incorrect name is shown by the failure to except because of the misnomer. Had the appellee timely filed such an exception, no doubt appellant would have amended, in which case the amended petition would have related back to the time of the filing of the original petition. Jago v. Indemnity Ins. Co. of North America, 120 Tex. 204, 36 S.W.2d 980.

Under the facts stated, the time of the filing of the amended original petition cannot be said to be the time of the commencement of the suit against the Express Publishing Company, when testing the validity of the special demurrer of the one-year statute of limitation. The amendment which only corrected the misnomer of the party intended to be sued, must, under the...