Opinion
No. 42416.
April 2, 1935.
ORIGINAL NOTICE: Requisites and Validity — Name of Plaintiff — Variations. When, in a duly served original notice of suit, and in the petition filed, plaintiff's name appears as v"Joseph Gulberg", the statement in the body of the petition that the plaintiff is also known as "Joseph Eulberg" and "that Joseph Gulberg and Joseph Eulberg are one and the same person" furnishes no ground for quashing the notice and dismissing the action.
Appeal from Marshall District Court. — B.O. TANKERSLEY, Judge.
This is an action at law, based upon an account for merchandise sold to the defendants. Defendants filed special appearance and moved to quash summons and dismiss petition, which motion was overruled, and defendants appeal. — Affirmed.
Boardman Cartwright, for appellants.
W.D. Kearney, for appellee.
This is an ordinary action at law upon an account for merchandise sold to the defendants. The case is entitled "Joseph Gulberg, Plaintiff, vs. H.M. Cooper, and A.R. Cooper, Defendants." The original notice was dated June 4, 1931, and signed "Joseph Gulberg, Plaintiff, W.D. Kearney, Attorney," and recites that Joseph Gulberg claims of and from the defendants a certain sum of money, etc., and that the petition will be on file on or before the 19th day of June, 1931. This notice was served June 4 and June 6, 1931, on the defendants therein named. The petition was filed on the 19th of June, 1931, as stated in the notice, and was entitled the same as the notice, but in the body of the petition there is this paragraph:
"That the plaintiff is also known as Joseph Eulberg and that Joseph Gulberg and Joseph Eulberg are one and the same person", and the petition is signed, "Joseph Gulberg, also known as Joseph Eulberg, Plaintiff, by Adams, Farber Kearney, His Attorneys."
On the 23d of June, 1931, the defendants filed a special appearance and motion and moved the court to quash the summons and dismiss the case for the reason that the plaintiff's real name is Joseph Eulberg, while the petition states the plaintiff to be Joseph Gulberg, and for the further reason that "the original notice being entitled Gulberg and the petition being entitled Eulberg, there was no petition on file at the time fixed in the original notice." The court overruled the defendants' motion, and from this ruling the defendants have appealed to this court.
From the abstract before us, it appears that the special appearance and motion contains a misstatement, in that it states that the original notice was entitled Gulberg and the petition was entitled Eulberg. The abstract shows that the petition and notice were entitled the same, the plaintiff in both instances being Joseph Gulberg in the title of the action. The petition contains the further statement as above set forth that Eulberg and Gulberg are one and the same person. There is nothing in the record to show which of the two names is the correct name of the plaintiff. No evidence whatever was taken and no affidavits were filed in support of the motion. Hence, we must assume the statement in the petition to be correct — that the plaintiff was Joseph Gulberg, and was also known as Joseph Eulberg, and that they are one and the same person. The defendants could not have been misled to their prejudice in this matter, under the showing made, and there is no merit in the appeal.
It follows that the ruling of the lower court is correct, and the case is affirmed. — Affirmed.
All Justices concur.