McCord-Collins Co. v. Prichard.

• Court: Texas Court of Appeals
• Writing for the Court: Speer
• Citation: McCord-Collins Co. v. Prichard., 84 S.W. 388, 37 Tex.Civ.App. 418 (Tex. App. 1904)
• Decision Date: 10 December 1904
• Parties: McCORD-COLLINS CO. v. PRICHARD.<SMALL><SUP>*</SUP></SMALL>

84 S.W. 388

McCORD-COLLINS CO. v. PRICHARD.^*

Court of Civil Appeals of Texas.

December 10, 1904.

Appeal from District Court, Tarrant County; Irby Dunklin, Judge.

Action by J. T. Prichard against the McCord-Collins Company, a corporation. From a judgment for plaintiff, defendant appeals. Affirmed.

John W. Wray, for appellant. McLean, Booth & Morton, for appellee.

SPEER, J.

On February 18, 1899, the appellee received certain personal injuries while in the building occupied by the appellant as a wholesale grocery house in the city of Ft. Worth. He filed suit to recover damages on May 9, 1899, alleging the name of the defendant to be McCord-Collins Commerce Company. The petition described the building in which the business was carried on, and the citation was served on J. Burnett Collins, who was then, and is now, the president of the appellant company. An answer was filed on February 12, 1900, containing a general demurrer and general denial, which was signed by counsel as "attorney for defendant." On April 21, 1900, an amended answer was filed in the name of "the defendant," without specially disclosing the name of the defendant for whom such answer was intended. The case came on for trial June 3, 1901, when it was discovered that the McCord-Collins Commerce Company was not the name of the defendant intended to be sued, but that its true name was McCord-Collins Company. The appellee was apprised of this error by the introduction in evidence upon the part of the defendant of the charter of the present appellant showing its name to be as above indicated. Thereupon appellee, by trial amendment, made the proper correction curing the misnomer of the defendant. The court directed the jury to find for the McCord-Collins Commerce Company, and a new trial was subsequently granted. Appellee again amended, dismissing his cause of action as to the McCord-Collins Commerce Company, and continued the cause for service upon the McCord-Collins Company, which was afterwards served with citation, and answered, among other things, with a plea of the statute of limitations of two years. It will be observed that at the time of the filing of the trial amendment above referred to more than two years had elapsed since the happening of the injury. After the service of citation upon the appellant company the court sustained the special demurrer to appellee's petition and cause of action on the ground that it was barred by the statute of limitations of two years, but that judgment was subsequently reversed by this court, and the cause remanded for another trial. Prichard v. McCord-Collins Company (Tex. Civ. App.) 71 S. W. 303. The trial resulting in the judgment sought to be reversed on this appeal was had upon appellee's fourth amended petition supplanting all former pleadings, in which it was alleged, among other things, in effect, that appellant company was the company intended to be sued at all times; that it understood such to be the fact; and that it had in reality appeared and answered in the case upon the several dates hereinbefore referred to as the dates of filing defensive pleadings by "the defendant." The case was submitted to a jury upon special issues, upon the answers to which the court rendered judgment in favor of the appellee for the sum of $900 damages.

In the view we take of the case, the eighth special finding of the jury, to the effect that the original answer, filed February 12, 1900, and the amended answer, filed April 21, 1900, were filed for and on behalf of the appellant, if supported by the evidence, is decisive of all questions in this case, and necessarily leads to an affirmance of the judgment. Of course, if appellee really intended to sue the appellant—and the jury has found that he did—and if appellant appeared and answered his suit, it is immaterial whether it was ever served with citation, or whether it was correctly described in his petition. An answer failing to suggest the misnomer would amount to a waiver of such irregularity, and authorize a judgment against it. If it desired to avail itself of such irregularity, it should have done so by a plea in abatement, interposed at the proper time, to which appellee could properly have replied by an amendment curing the misnomer. Southern Pacific Company v. Graham (Tex. Civ. App.) 34 S. W. 135. Treating the action of appellant in introducing in evidence the certificate of its incorporation showing its real name as having the same effect as a plea in abatement, it will be observed that the appellee immediately by trial amendment corrected the name of ...