Weaver ex rel. Webb v. McElhenon

• Court: Missouri Supreme Court
• Writing for the Court: RYLAND
• Citation: Weaver ex rel. Webb v. McElhenon, 13 Mo. 89 (Mo. 1850)
• Decision Date: 31 January 1850
• Parties: WEAVER, TO USE OF WEBB, v. MCELHENON.

13 Mo. 89

WEAVER, TO USE OF WEBB,

v.MCELHENON.

Supreme Court of Missouri.

January Term, 1850.

APPEAL FROM GREENE CIRCUIT COURT.

This is an action of debt by petition and summons brought by the plaintiff upon a promissory note for $160, and was signed by the defendant by the name of “Christy” or Christ. McElhenon. The defendant filed a general demurrer to the petition, which was sustained by the Circuit Court, and the plaintiff brings this suit here by appeal.

EDWARDS, for Appellant. The petition in said case is in the form prescribed by the statute, and the only objection taken, is that the petition states that Christopher McElhenon executed the note; and the note set out is signed by “Christy” or “Christ” McElhenon. This, if an objection, cannot be reached by demurrer, but should be taken advantage of under a plea of abatement or misnomer. Under the patent plea of the last Legislature, it should have been taken advantage of on the trial, on the ground of a variance between the name set out in the petition and that which was signed to the note offered in evidence. See 1 Chitty's Pl. 485. A petition in debt, under our statute, carries with it all necessary averments that could be made in the petition. See 6 Mo. R. 163. It is contended that this is not a misnomer of the defendant, but that it is a mere abbreviation of the name of the defendant, and such being the case, the court was bound to take judicial notice of the fact. See Fenton v. Perkins, 3 Mo. R. 144. Where two names have the same original derivation, or where one is an abbreviation or corruption of the other, but both are taken promiscuously, and according to common usage to be the same, though differing in sound, the use of one for the other is not a material misnomer. See Gordon v. Holliday, 1 Wash. C. C. R. 285. If this be the law in this case, the court should have overruled the demurrer, and permitted the plaintiff to show that the name by which this note was signed, was an abbreviation of the defendant's name. The doctrine in the case of Fenton v. Perkins, above cited, also bears on this point. See also City Council v. A. W. King, 4 McCord, 487.

HENDRICK, for Appellee. The Circuit Court did not err in its decision in this case. The action was manifestly brought wrong, and the court correctly sustained the demurrer.

RYLAND, J.

From the above statement, the only point for the adjudication of this court, is the judgment of the Circuit Court in sustaining the defendant's demurrer to the plaintiff's petition. We are of the opinion that the Circuit Court committed error in sustaining the defendant's demurrer. The only objection on the record appears to be, the abbreviation of the Christian name of McElhenon. The petition sets forth his full name of “Christopher,” and the note is signed by him in the abbreviated name thus:...