Forbes Bros. Teas & Spice Co. v. McDougle, Cameron & Webster

150 S.W. 745, 1912 Tex. App. LEXIS 1270

• Court: Court of Appeals of Texas
• Decided: October 30, 1912
• Status: Published

Opinion

FLY, J.

This is an action for debt, instituted on December 3, 1909, by appellant against McDougle-Cameron-Webster Company, successors to MeDougle-Craig Company, a corporation, founded on an account made during the year 1909. An answer to the petition was filed by McDougle, Cameron & Webster on December 31, 1909. On September 28, 1911, appellant filed an amended petition, in which the defendants were styled McDougle, Cameron & Webster, instead of McDougle-Cameron-Webster Company, and appellee, which had been in court by its answer since December, 1909, filed an amended answer, in which it was denied that any corporation existed under the name of Mc-Dougle-Cameron-Webster Company, and then set up its defenses. That answer was sworn to by the vice president of the company. On the same day what is styled an original answer was filed by appellee, in which the amended petition was excepted to, on the ground that it showed that the claim was barred by two years limitation. That exception was sustained by the court, and the cause dismissed, and from that judgment this appeal has been perfected.

[1-3] No plea in abatement was filed by appellee, but an answer to the merits was filed, and the case allowed to remain on the docket for about two years, before any objection was made to being sued under a misnomer, and then the objection came in the form of a plea of limitations. The statute of limitations was suspended by the institution of the suit, the service upon ap-pellee, and its appearance and answer. A mistake in the name of a defendant corporation, where citation is duly served on the proper party, must be taken advantage of by plea in abatement; and, when the defendant voluntarily answers to the merits, it cannot, after the action would be barred, plead limitation, when the plaintiff corrects the misnomer. Southern Pacific Co. v. Graham, 12 Tex. Civ. App. 565, 34 S. W. 135; McCord v. Pritchard, 37 Tex. Civ. App. 418, 84 S. W. 388; Mecca Ins. Co. v. Bank (Tex. Civ. App.) 135 S. W. 1083; Wells Fargo Express Co. v. Bilkiss (Tex. Civ. App.) 136 S. W. 798.

The judgment is reversed, and the cause remanded.