Miller v. Gaar-Scott Co.

Court of Appeals of Texas

Miller v. Gaar-Scott Co.

141 S.W. 1053, 1911 Tex. App. LEXIS 514

Court of Appeals of Texas·Decided November 23, 1911·Published·Cited by 1 cases

Opinion

HIGGINS, J.

This suit was instituted in the county court of Harris county by defendant in error against the plaintiffs in error upon certain notes described in plaintiff’s petition and for the foreclosure of a chattel mortgage upon certain personal property securing the payment thereof. Judgment was rendered for the principal, interest, and attorney’s fees provided for in said notes, together with foreclosure of lien.

[1] The sheriff’s return upon the citation issued in the cause shows that the same was served upon “Harman” Miller, instead of *1054 “Herman” Miller, and it is contended that this service was insufficient upon which to base the judgment herein. We are of the opinion that the doctrine of idem sonans applies, and the assignment of error raising this question is overruled. Kahn v. Herman, 3 Ga. 266; Ogden v. Bosse, 86 Tex. 342, 24 S. W. 798; Lyne v. Sanford, 82 Tex. 58, 19 S. W. 847, 27 Am. St. Rep. 852.

[2] It is also urged that the petition was insufficient to warrant the recovery of the attorney’s fees provided for in the notes. In the absence of special exception, the petition, in that respect, was sufficient, and, the same being by default, judgment was properly rendered for the attorney’s fees. Maddox v. Craig, 80 Tex. 600, 16 S. W. 328; Bank v. Robinson (Sup.) 135 S. W. 372; Lanier v. Jones (Sup.) 136 S. W. 255; Rutherford v. Gaines (Sup.) 120 S. W. 261; Smith v. Norton (Civ. App.) 133 S. W. 733.

Delay is suggested. We have examined the record and find no errors apparent, and the judgment is therefore affirmed. The prayer of defendant in error for assessment of damages for alleged delay, however, is refused.

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HIGGINS, J.

This suit was instituted in the county court of Harris county by defendant in error against the plaintiffs in error upon certain notes described in plaintiff’s petition and for the foreclosure of a chattel mortgage upon certain personal property securing the payment thereof. Judgment was rendered for the principal, interest, and attorney’s fees provided for in said notes, together with foreclosure of lien.

[1] The sheriff’s return upon the citation issued in the cause shows that the same was served upon “Harman” Miller, instead of *1054 “Herman” Miller, and it is contended that this service was insufficient upon which to base the judgment herein. We are of the opinion that the doctrine of idem sonans applies, and the assignment of error raising this question is overruled. Kahn v. Herman, 3 Ga. 266; Ogden v. Bosse, 86 Tex. 342, 24 S. W. 798; Lyne v. Sanford, 82 Tex. 58, 19 S. W. 847, 27 Am. St. Rep. 852.

[2] It is also urged that the petition was insufficient to warrant the recovery of the attorney’s fees provided for in the notes. In the absence of special exception, the petition, in that respect, was sufficient, and, the same being by default, judgment was properly rendered for the attorney’s fees. Maddox v. Craig, 80 Tex. 600, 16 S. W. 328; Bank v. Robinson (Sup.) 135 S. W. 372; Lanier v. Jones (Sup.) 136 S. W. 255; Rutherford v. Gaines (Sup.) 120 S. W. 261; Smith v. Norton (Civ. App.) 133 S. W. 733.

Delay is suggested. We have examined the record and find no errors apparent, and the judgment is therefore affirmed. The prayer of defendant in error for assessment of damages for alleged delay, however, is refused.

Miller v. Gaar-Scott Co., 141 S.W. 1053, 1911 Tex. App. LEXIS 514 (Tex. Ct. App. 1911).

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