Parry v. Woodson

33 Mo. 347

Opinion

Dryden, Judge,

delivered the opinion of the court.

The plaintiff sued the defendant by the name of Benjamin H. Woodson to recover the amount of a promissory note made by the defendant. Process was personally served, and at the return term, and after the expiration of the time for answering, the plaintiff, having obtained leave, amended his petition by striking out the name Benjamin and inserting in its place the name Branham; and the defendant still contin uing in default, judgment was rendered for the plaintiff. The defendant then appeared and moved the court to set aside the judgment; but his motion being overruled, he appealed to this court.

The point of the objection to the judgment of the lower court is, that the defendant having been sued and served with process by a wrong name, the court acquired no jurisdiction of him, and could render no valid judgment against him. The objection gives the name quite too much importance. 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 sired 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 kof the amendment in this case; 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.

The power of the court to make the amendment complained of, as well before as after judgment, was unquestionable. (R. C. 1855, § 3, p. 1253; sub. 10 of § 19, p. 1256; § 20, p. 1257.)

The judgment must be affirmed, with ten per cent, damages.

The other judges concur.