Naftel Dry Goods Co. v. Mitchell

• Decision Date: 23 October 1924
• Docket Number: 6 Div. 197.
• Citation: 212 Ala. 32,101 So. 653
• Parties: NAFTEL DRY GOODS CO. v. MITCHELL.
• Court: Alabama Supreme Court

101 So. 653

212 Ala. 32

NAFTEL DRY GOODS CO. v. MITCHELL.

6 Div. 197.

Supreme Court of Alabama

October 23, 1924

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action by the Naftel Dry Goods Company against Herberta Mitchell. From a judgment for defendant, plaintiff appeals. Transferred from Court of Appeals, under section 6, Acts 1911, p. 449. Reversed and remanded.

A Latady, of Birmingham, for appellant.

John W Altman and Jerone Edmundson, both of Birmingham, for appellee.

SOMERVILLE J.

In an action on a judgment the burden of proof is of course on the plaintiff to show the existence of a valid judgment, and the identity of the judgment defendant with the defendant presently sued. From an identity of names there arises a presumption of an identity of persons; but, if the name of the person designated in the judgment is not identical with the name of the person presently sued, the burden rests upon the plaintiff to establish that identity to the reasonable satisfaction of the jury. The trial of such an issue necessarily involves a resort to parol evidence. Tarleton v. Johnson, 25 Ala. 300, 310, 60 Am. Dec. 515; Naftel Dry Goods Co. v. Mitchell, 208 Ala. 640, 95 So. 32.

"Properly each party should be designated by his true name, both Christian name and surname in full. But the omission of a party's Christian name, or the use of an erroneous Christian name, is a mere irregularity which will not render the judgment void, and may not even render it subject to reversal, as where the defect is cured by other parts of the record. *** And the use of initials in lieu of the Christian name has been said to render the judgment merely irregular and not void." 33 Corp. Jur. 1200, § 132. And authorities are numerous to the effect that "a defendant who is sued by the wrong name, but with due service of process upon him, who fails to plead the misnomer and suffers a judgment to be taken against him in such name, may be connected with the judgment by proper averments and will be bound by it." 33 Corp. Jur. 1200,§ 132, and cases cited under note 18.

Under the evidence before the court, the jury were properly instructed that if "the defendant in this case was served with a copy of the summons and complaint in the suit which resulted in the judgment sued on, *** and that she was so served as the defendant in said suit, your verdict must be rendered in favor of the plaintiff in this cause."

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