Smith v. Ross
| Decision Date | 31 May 1842 |
| Citation | 7 Mo. 463 |
| Parties | SMITH v. ROSS AND STRONG. |
| Court | Missouri Supreme Court |
ERROR TO ST. LOUIS COURT OF COMMON PLEAS.
PRIMM, for Plaintiff.
ALLEN, for Defendants.
Ross and Strong brought an action of debt against Solomon Smith, on a judgment recovered in the county court of Mobile county in the State of Alabama. On the trial of the issue taken on the plea of nul tiel record, the transcript produced in evidence, showed that John McD. Ross and Thomas Strong were plaintiffs, and that the judgment was rendered against Edwin Haniman, and Solomon Smith. Haniman, it seems, was not served with process. Smith, who was served, appeared and entered several pleas. At the trial term, the record states, the parties appeared by their attorneys, and thereupon a jury was sworn, whose verdict was in this form: “we of the jury find for the plaintiffs, and assess their damages,” &c. A judgment is then rendered against the “defendants” on which an execution is issued against both Haniman and Smith. On the trial below the plaintiffs had judgment.
The question is, whether there was a variance between the declaration and the transcript offered in evidence. Ross recovered the judgment sued on, by the name of John McD. Ross, and institutes this suit by the name of John Ross. This it is contended is a variance. The declaration does not profess to set out the record in so many words; nor is it so vouched as to hold the plaintiff to the proof of an exact copy. It is said that “McD.” is a part of the family name of Ross, and not the initials of a middle name; but from an inspection of the record, we are satisfied that “McD.” is not a part of the surname, but the initials of a middle one. Had it been a part of the middle name, the suit might have been abated by plea, and in that way the truth of the assertion might have been tested. In the case of Keene v. Meade, 3 Peters, it was said by the Supreme Court of the United States, that there were cases strongly countenancing, if not fully establishing, that the omission of the middle letter of a name is not a misnomer or variance. The same principle has been recognized and sanctioned by this court. 7 Mo. R. 263.
Another variance alleged is, that the transcript offered in evidence shows that a judgment was recovered against both Haniman and Smith, and the declaration is against Smith alone. If this objection really existed, it would be difficult to surmount. Rastal v. Stratton, 1 H. Blacks. R.
But, from the record offered in evidence, we do not conceive that Haniman had any notice of the proceedings. It is a principle of...
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Fears v. Riley
...color to a charge of a fraudulent concurrence against him. A judgment rendered against a party who had no notice is utterly void. Smith v. Ross, 7 Mo. 463; Roach v. 33 Mo. 319; Cloud v. Inhabitants, 86 Mo. 357; Hope v. Blair, 105 Mo. 85; Newton v. Newton, 32 Mo.App. 162; Bobb v. Graham, 4 M......
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Patterson v. Yancey
... ... Weiskettle, Crittenden v. Schermerhorn, supra; Phelps v ... Conant, 30 Vt. 277; Faulconer v. Warner, 2 ... Wash. 525, 27 P. 274; Smith v. Baugh, 32 Ind. 163; ... McKeen v. Boord, 60 Ind. 280; Reed v ... Worland, 64 Ind. 216. The ruling was the other way in ... the cases next ... judgment entered in an action without notice to the defendant ... is a nullity, for one must have his day in court. Smith ... v. Ross, 7 Mo. 463; Roach v. Burnes, 33 Mo ... 319. And that a defendant was not notified or summoned may be ... shown in a direct proceeding to set ... ...
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Cabell v. Grubbs
...order of publication alone against a non-resident defendant, and, as such, is absolutely void and does not sustain the deed. (Smith v. Ross & Strong, 7 Mo. 463; Janney v. Spedden et al., 38 Mo. 395; Smith v. McCutchen, 38 Mo. 415; Abbott v. Sheppard, 44 Mo. 273; R. S. 1825, p. 149, § 13.) I......
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Beckner v. McLinn
...She was notified by her first name, Mary. It has been uniformly ruled by this court that the middle letter is no part of the name. Smith v. Ross, 7 Mo. 463; State v. Martin, 10 Mo. 391; Skelton Sackett, 91 Mo. 377, 3 S.W. 874. II. Morever, the defendant, Mary A. Byers, before any final judg......