Lawrence-Leiter & Co. v. Patel

MAUS, Judge,

dissenting.

I dissent. This is not a case where a defendant was not served with process. Nor is it a case where the jurisdiction of the court depends upon constructive service or abode service for a person not correctly named as a defendant who is not actually served. Cf. Blackburn v. Holmes, 317 S.W.2d 408 (Mo.1958). Ranchan Patel was actually served with a summons with a copy of the petition attached. The caption of the Petition in this case named the defendants as: “VASANT B. PATEL & RINA PATEL D/B/A TOWN HOUSE MOTEL”. (Emphasis added.) Each of the summons bore the same caption. The first paragraph of the petition alleged “That Defendants at the time of the facts alleged hereafter were doing business in Cassville, Barry County, as” Two copies of the summons, with the petition attached, were handed to Ranchan Patel.

It is apparent from the summons and petition the person sued as a co-defendant with Vasant B. Patel was a party doing business as “Town House Motel”. A mistake in the name of that person did not insulate Ranchan Patel, who was personally served, from the action.

“A mistake in the defendant’s name — a misnomer — is not necessarily a fatal defect. Generally, it is considered to be a defect which may be amended, and it may even be disregarded where it is fairly certain that no prejudice has resulted to the defendant. Misnomer mistakes need not be treated as grounds for dismissal if intelligent persons can understand what was intended, or if the party intended to be served knows, or has good reason to know, that he has been proceeded against, or where an imprecisely designated defendant was fully apprised of the fact and nature of the action against it. An individual defendant may be sued and validly served with process that describes that individual as a person ‘doing business’ as a particular named company_” 62B Am.Jur.2d, Process, § 84.

That principle is generally applied when the defendant named is a non-existent person or is not known to the person served. However, the fact Rina Patel was a person known to Ranchan Patel does not cause that principle tó be inapplicable. Ranchan Patel was well aware her eight-year-old daughter did not do business as a co-owner of Town House Motel. The use of her daughter’s name unquestionably alerted Ranchan Patel a mistake had been made and that it was she who had been served as a co-owner.

The effect of that mistake has been succinctly stated.

“As a general rule, an objection that the defendant was sued by the wrong name is matter of abatement only, and will not void a judgment against him if he has been actually served. Due process of law does not impose an unattainable standard of accuracy. If a defendant within the jurisdiction is served personally with process in which his name is misspelled, he cannot safely ignore it on account of the misnomer. Accordingly, if the defendant has been actually served with the summons in an action, a default judgment against him is valid although in the summons he is misnamed. If the defendant prefers not to appear in the action and enter a plea of abatement, he will be deemed to have waived the error, and such judgment is held to be valid until regularly vacated or set aside or until the record has been amended to correct the error,” 62B Am.Jur.2d, Process, § 85.

These principles are embodied in the statement of the general rule adopted in Missouri authorizing the action of the trial court in ordering the amendment of the judgment to substitute the name of Ran-chan Patel. That general rule was stated at an early date.

“A name is a means of identity; but the change of the name or the application of a wrong name does not change the thing identified. It is not the name that is sued but the person to whom it is applied. Process served on a man by a wrong name is as really served on him as if it had been served on him by his right name, and if in such case he fail to appear, or appearing fail to object that he is sued by the wrong name, and judgment be rendered against him by such name, he is as much bound by the judgment as if it had been rendered against him by his right name. The use of the right name is every way preferable, since without it as a means of identification the evidence of the identity of the person sued may in process of time become lost; and hence the propriety of the amendment in this ease; but so long as the defendant can be identified as the one against whom the judgment was rendered, he is as much bound by the judgment, and those claiming under the judgment are as much entitled to its benefits, to all intents and purposes, as if the defendant had been sued by his right name.” Parry v. Woodson, 33 Mo. 347, 348 (1863). (Emphasis added.)

That rule has been consistently recognized. Blackburn v. Holmes, supra; Green v. Strother, 201 Mo.App. 418, 212 S.W. 399 (1919); Harper v. Hudgings, 211 S.W. 63 (Mo.1919); Slavens v. William C. Haas Co., Inc., 563 S.W.2d 157 (Mo.App.1978). An incisive discussion of an application of the basic rule is found in Green, supra, in which a judgment against a defendant named as “John Skinner” was held to be in fact a judgment against the estate of “William Floyd Skinner, deceased.”

An applicable subsidiary rule is the following.

“These rules apply even though the proceedings to enforce the judgment occur in a court other than the one of rendition; and this is so also even though proof of the identity of the party defendant requires evidence extrinsic from the record in the original proceeding.” Aman Collection Service, Inc. v. Burgess, 612 S.W.2d 405, 408 (Mo.App.1981).

The majority opinion is based upon the proposition that there was no evidence from which the trial court could find the plaintiff sued the right party, Ranchan Patel, by the wrong name, Rina Patel. I disagree. The trial court was entitled to and did disbelieve the professions of ignorance of Vasant B. Patel and Ranchan Patel, and disclaimer of representation proffered by lawyer LeCompte. The trial court could reasonably find such incredulous professions of ignorance and disclaimer of representation to be an acknowledgment by all concerned they were well aware the “co-owner” sued was Ranchan Patel. The trial court did so find, in its oral explanation to the parties, why it determined the trial court had been “sandbagged.” The awareness of the parties is reflected in the testimony of LeCompte concerning whom he thought he represented in filing a pleading under the name of and on behalf of Rina Patel. He said, “I assumed it was the co-owner, yes.” (Emphasis added.) That knowledge was confirmed when lawyer Le-Compte filed a motion for judgment notwithstanding the verdict, still on behalf of the defendants, in which he alleged “the court erred in refusing defendants’ motions for directed verdict for any defendant other than Vasant Patel”. (Emphasis added.) The trial court could reasonably find that co-owner of the business, Ranchan Patel, was identified as the co-defendant sued “d/b/a Town House Motel”, and that Va-sant B. Patel and Ranchan Patel and Le-Compte were not misled, but misled the trial court.

Rule 75.01, in part, provides: “The trial court retains control over judgments during the thirty-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time.” In this action, the amended judgment was entered in that manner and within that time.

Moreover, even when a judgment is final, § 511.260 is applicable. That section, in part, provides: “[Jjudgment thereon shall not be ... reversed, impaired or in any way affected by reason of the following imperfections, omissions, defects, matters or things, or any of them, namely: ... (10) For any mistake in the name of any party or person, or in any sum of money, or in any description of any property, or in reciting or stating any day, month or year, when the correct name, sum or description shall have been once rightly alleged in any of the pleadings or proceedings.” Section 511.270 provides: “The omissions, imperfections, defects and variances in section 511.260 enumerated, and all others of a like nature, not being against the right and justice of the matter of the suit, and not altering the issues between the parties on the trial, shall be supplied and amended by the court where the judgment shall be given, or by the court into which such judgment shall be removed by writ of error or by appeal.” Those sections have been held to authorize an amendment of a misnomer in proceedings comparable to this case. Green v. Strother, supra. Also see Slovens v. William C. Haas Co., Inc., supra; Orona v. Consolidated Cab Company, 373 S.W.2d 486 (Mo.App.1963); Harper v. Hudgings, supra; Aman Collection Service, Inc. v. Burgess, supra; Walker v. Wabash R. Co., 193 Mo. 453, 92 S.W. 83 (1906).

Under the case law, Rule 75.01 and §§ 511.260(10), the amendment granted by the trial court was proper. I have examined the other two points purportedly raised by Kanchan Patel. They have no merit and I would affirm the judgment of the trial court.