Martinez v. Dragna
| Decision Date | 25 March 1903 |
| Citation | 73 S.W. 425 |
| Parties | MARTINEZ v. DRAGNA. |
| Court | Texas Court of Appeals |
Appeal from Dallas County Court; Ed. S. Lauderdale, Judge.
Action by P. P. Martinez against B. Dragna. From judgment for defendant, plaintiff appeals. Affirmed.
W. A. Kemp, for appellant. Evans & Davis, for appellee.
The original petition, filed January 2, 1901, was against D. Dragna on a note executed by defendant therein (D. Dragna), which was payable on January 1, 1897. Citations were issued on that petition, but not served. No appearance was entered. On April 10, 1902, plaintiff filed an amended original petition in the case, which alleged the defendant's name was by mistake in the petition stated as D. Dragna, when his real name is B. Dragna, and then charged that the note was executed by B. Dragna, setting forth its terms the same as in the original petition, and asked for citation for B. Dragna. On May 1, 1902, B. Dragna answered, setting up, among other things, that the note was barred, claiming that he had not been sued thereon until by the amended petition. The court appears to have given judgment for defendant on this plea. We think the judgment should be affirmed. There was no proof that appellee was known by either name, nor was there any proof which would have shown an excusable mistake in bringing the original action against D. Dragna. Pritchard v. McCord-Collins Co. (Tex. Civ. App.) 71 S. W. 303. The names are dissimilar, and indicate different persons. The defendant, as originally named, was D. Dragna, and the note that petition declared on was a note executed by D. Dragna, a different defendant and a different note than were designated in the amended pleading. In the absence of some showing such as above indicated, the court did not err in holding that the original petition did not arrest the statute.
Affirmed.
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J. S. Abercrombie Co. v. Hagen
...refused; City of Gainesville v. Harder, 139 Tex. 155, 162 S.W.2d 93; Landers v. Jordan, Tex.Civ.App., 126 S.W.2d 677; Martinez v. Dragna, Tex.Civ.App., 73 S.W. 425; Owen v. City of Eastland, 124 Tex. 419, 78 S.W.2d 178; Real Estate Land Title and Trust Co. v. Beryle, Tex.Civ.App., 88 S.W.2d......
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Consolidated Underwriters v. Adams
...was more than 20 days after the giving of notice of appeal from the award on July 20, 1934. 28 Tex.Jur. § 109, p. 202; Martinez v. Dragna (Tex.Civ.App.) 73 S.W. 425; Bickford v. Refugio Land & Irrigation Co. (Tex.Civ.App.) 143 S.W. 1188; Southern Pacific Co. v. Block Bros., 84 Tex. 21, 19 S......
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Butler v. Express Pub. Co., 10344.
...and the cause remanded. On Motion for Rehearing. The appellee asserts that our holding is in conflict with the cases of Martinez v. Dragna, Tex.Civ.App., 73 S.W. 425, and Bickford v. Refugio Land & Irrigation Company, Tex.Civ.App., 143 S.W. 1188. In the first case the citation was not serve......