Evans-Smith Drug Co. v. White , 86 Mo. App. 540 ( 1901 )

ELLISON, J.

This action is based on an account for merchandise. It was begun before a justice of the peace where plaintiff failed to appear at the return day. The defendant did appear and filed her motion to dismiss the cause for want of prosecution which the justice sustained. Afterwards, plaintiff appealed to’the circuit court, giving written notice of such appeal to defendant. The suit as instituted before the justice was against “H. A. White” and the account was not itemized. The. summons issued by the justice directed that “Mrs. S. O. White” be summoned and the constable made return that he had served Mrs. S. O. White. The affidavit for appeal to the circuit court was entitled in the name of this plaintiff against “H. A. White,” and the bond was to “BE. A. White.” The notice of appeal was entitled in the name of this plaintiff against “Mrs. H. A. White” and was served on her by that name.

In the circuit court, plaintiff filed an amended account styling it “Mrs. S. O. White doing business in the name of Mrs. H. 0. White, Dr. to Evans-Smith Drug Go.” and itemized it. Judgment was then duly rendered by the circuit court against “Mrs. S. 0. White.” The defendant Mrs. White, up to this point, had not appeared in the circuit court. After-wards, at the same term, she did appear and filed a motion to set aside the judgment aforesaid, which the court sustained. That motion entitled the suit, as against “Mrs. H. 0. White” and then proceeds to state that: “Now at this time comes Mrs. S. 0. White and moves the court,” etc. Erom the judgment sustaining said motion plaintiff prosecutes this appeal.

Defendant in support óf the judgment sustaining his motion to set aside plaintiff’s judgment uses the following language:

“Erom inspection of the record it appears that this suit was brought originally against II. A. White; that his wife was summoned before the justice of the peace and procured judgment against the plaintiff for costs. Erom this judgment no appeal was taken. The plaintiff filed his affidavit in a case against II. A. White and gave a bond payable to II. A. White. There was no attempt to correct this error by filing a new bond or affidavit. Our contention is that no appeal was ever taken from the judgment in favor of Mrs. S. 0. White, or Mrs. H. A. White.”

No satisfactory explanation is made why. so much confusion appears in the name of the defendant in this cause. The defendant is styled H. A. White, and S. 0. White and then Mrs. U. A. White, and Mrs. S. 0. White; and again, as Mrs. S. 0. White widow of II. A- White. These different designations being used not only in different papers' in the cause but, in some instances, in the same paper. Not being content with such confusion, the defendant is finally designated as Mrs. II. 0. White. So that from the papers and parts of the recerd in the cause we are unable to say whether the party sued and upon whom papers were served and against whom judgment was obtained is the same person. Neither are we able to say whether defendant is a man or a woman.

But finally, the party upon whom all the papers had been served under these different designations appeared as a witness in the circuit court cause and rendered clear what without her aid would never have been known. She testified that “my name is Susan Ordelia White,” that is S. O. White and “my husband’s name was H. A. White” and that “he was dead at time this suit was brought before Sqdire Boring.”

It does not appear whether plaintiff by instituting the action against H. A. White intended it to be against the husband who was dead or Mrs. H. A. White, the surviving widow. But as the summons was served on her as Mrs. S. 0. White widow of H. A. White, and she appeared to the action in answer to the summons and made no objection, each party thereafter and the justice treating her as the defendant, we must assume that she was the party sued. She being the party sued, though in a wrong name, she must appear and object in order to get any advantage from that mistake. Parry v. Woodson, 33 Mo. 347. In that case the party was sued and served with process in a wrong name. In this case defendant is sued in a wrong name and served with process in her right name. She never objected to this until after judgment in the circuit court.

Defendant seems to concede the foregoing since it will be observed that her point (above set out) does not include such objection but only goes to such defects in the appeal to the circuit court as to deprive (as she contends) that court of jurisdiction. In entitling the cause in the affidavit for appeal defendant is designated as H. A. White and the appeal bond is payable to the same name. Yet they were each filed in the cause by the justice and the appeal allowed. Granting these papers were defective, yet that did not deprive the circuit court of jurisdiction, or render its judgment invalid, defendant not having made any objection thereto. Welsh v. Railroad, 55 Mo. App. 599; Moulder v. Anderson, 63 Mo. App. 34.

Defendant urges another point in favor of the judgment-setting aside plaintiff’s judgment and that is that after the case got into tbe circuit court plaintiff by leave of court amended tbe account; or rather, that be amended tbe name of tbe defendant by substituting tbe name S. 0. White for that of H. A. White which was used at the institution of tbe suit before tbe justice. There was nothing improper in such amendment. This was specially so decided in Parry v. Woodson, supra.

Tbe plaintiff’s judgment should not have been set aside. Tbe judgment setting it aside will therefore be reversed.

Broaddus, J., concurs; Smith, P. J., being a party in interest, not sitting.