Faver v. Robinson

• Decision Date: 01 January 1876
• Parties: JOHN R. FAVER v. D. T. ROBINSON.
• Court: Texas Supreme Court

46 Tex. 204

JOHN R. FAVER

v.D. T. ROBINSON.

Supreme Court of Texas.

1876.

ERROR from Delta. Tried below before the Hon. W. B. Andrews.

D. T. Robinson brought suit in the District Court against John R. Favers, R. H. Bennett, and Frederick W. Miner on a promissory note executed by Faver, Bennett, and Miner, to Delta county, and by the county assigned to plaintiff, for lot No. 5, in block 17, of the town of Cooper, sold by the county authorities to said John R. Favers. Judgment was asked for the amount of the note, and that the vendor's lien upon said lot be enforced.

Citation was issued, and service had on Favers and the other defendants.

Judgment final by default was rendered for the amount due on the note, and enforcing the lien and against John R. Faver.

Faver, Bennett, and Miner brought the case by writ of error to this court for revision.

Frederick W. Miner, for plaintiffs in error, cited Hall & Jones v. Jackson, 3 Tex., 310;Malone v. Kaufman, 38 Tex., 457;Cannon v. Bonner, 38 Tex., 491;Parker County v. Sewall, 24 Tex., 239;Houston v. Musgrove, 35 Tex., 597.

S. W. Stewart, for defendant in error.

MOORE, ASSOCIATE JUSTICE.

The petition in this case does not warrant the judgment. Suit was brought against John R. Favers. The contract upon which the action is founded is alleged to have been made with Favers. The citation issued to Favers, and the sheriff's return shows that Favers was the party upon whom it was served, while judgment is rendered against John R. Faver. Evidently, it cannot be said that there is such similarity in the name of the defendant, as shown by the petition and citation and in the judgment, as to make the doctrine of idem sonans applicable in this case. Nor does the fact of the note, which was signed by Faver, being an exhibit to the petition, warrant our holding, in support of a judgment by default, that there was a mere clerical mistake in the spelling of the name of the defendant in the petition and citation, and that Faver, against whom the judgment was entered, was the defendant named in the petition, and the party upon whom the sheriff served the citation.

This is altogether a different case from Cartwright v. Chabert, 3 Tex., 261, and Tryon v. Butler, 9 Tex., 553, cited by counsel in error in support of the judgment.

The case of Cartwright v. Chabert holds that after plea in abatement for misnomer of the plaintiff the mistake in the name may be corrected by amendment; and Tryon v. Butler decides that, although the record shows that a mistake in the name of the plaintiff had been corrected by amendment, it is not error to take judgment by default without service of the amendment upon the defendant. There was no question in either of these cases as to service of the citation upon the defendant. In the first the defendant was before the court contesting the plaintiff's right to correct by amendment the mistake in...