143 S.W. 1188 | Tex. App. | 1912
John Bickford, seeking to recover damages for personal injuries sustained by him, alleged to have been caused by the negligence of defendant, brought suit against the Refugio County Land *1189 Irrigation Company, stating in his petition that "defendant is a corporation duly incorporated under the laws of the state of Texas, having its principal office at Victoria, in Victoria county, in said state, and that J. C. McDowell, who is a resident of Pittsburg, in the state of Pennsylvania, is the president thereof, and that V. B. Proctor, who resides in Victoria county, Tex., is the secretary thereof, and that J. K. Hexter, who resides in Victoria county, Tex., is the treasurer thereof." Upon the filing of the petition a citation was issued commanding the proper officers to "summon the Refugio County Land Irrigation Company, a corporation, having its principal office in the town of Victoria, in Victoria county, Tex.," and having for its president, secretary, and treasurer the same persons named in the petition, to appear and answer the plaintiff's petition. It concluded as follows: "And you will deliver to said defendant by delivering to its said secretary, V. B. Proctor, or to its said treasurer, J. K. Hexter, both of whom reside in Victoria county, Texas, in person a true copy of this citation, together with the accompanying certified copy of plaintiff's petition." The sheriff's return showed that the citation and a copy of the petition had been duly served on J. K. Hexter.
Plaintiff alleged in his petition that the injuries for which he sued were received by him on the 3d day of June, 1907, and his petition was filed on March 17, 1909. The first term of the district court that convened after the filing of the petition began on the 19th day of April, 1909. On April 20, 1909, J. K. Hexter filed in said suit in said court the following affidavit: "Now comes J. K. Hexter, a resident citizen of Victoria county, Tex., and would show that heretofore a citation in the above entitled and numbered cause was served on him by the sheriff of Victoria county, and would further show that neither at the time of service of said citation, nor at any time since the service thereof, has he, the said J. K. Hexter, held the office of president, secretary, or treasurer of said defendant company, or association, nor was he at the time of such service, or since that time has he been, the local agent of such company or corporation representing such company in the county in which this suit is brought, nor was he at the time of such service or since said time an agent, officer, or representative of the said defendant, the Refugio County Land Irrigation Company." Prior to the convening of the court, appellant's attorney wrote a letter to Messrs. Proctor, Vandenberge Crain, attorneys at law, at Victoria, asking them if they would consent to a continuance of the cause at the next ensuing term, and in reply Messrs. Proctor, Vandenberge Crain wrote as follows: "As to the Bickford case in the district court of Refugio county, we will have no objection to your having the case continued at the present term convening next Monday; but, as there may be some question of venue or service we would desire to take advantage of and have in the record, we prefer not to have the continuance entered by agreement upon the part of our client, the Refugio Land Irrigation Company, as this would probably be construed as the entry of an appearance by said company. You may, however, if you wish, write instructing the clerk at Refugio to pass the case until the next term, and we will raise no objection to that procedure upon the part of our said client." On October 25, 1909, more than two years after the date of plaintiff's injuries, plaintiff filed an amended original petition in which he for the first time named the Refugio Land Irrigation Company as defendant, and set up his cause of action against it for the damages sustained. He also sought in this petition to excuse himself for not earlier asserting his claim against the Refugio Land Irrigation Company. At the next ensuing term the Refugio Land Irrigation Company filed two special exceptions to the amended petition, in substance as follows: (1) That plaintiff's cause of action appeared from the face of the petition to be barred under the two-year statute of limitation prescribing such period of limitaton as to causes of action for the injuries done to the person of another; and (2) that the facts stated in the amended petition did not excuse plaintiff from a failure to assert his case of action against defendant before the expiration of the two year period. Both exceptions were sustained by the court, and upon plaintiff declining to amend, his case was dismissed, and from the judgment of dismissal plaintiff has appealed, and assigns as error the action of the court in sustaining said exceptions. Under this assignment appellant contends, in effect, that where a corporation is sued by a name other than its true name, but it is otherwise correctly described in the petition and its agents are correctly named, an amendment correcting a misnomer of defendant is properly allowed, and the statute of limitations does not run during the time suit was pending before the amendment was filed.
Under the authority of Southern Pacific Company v. Block,
The cases cited by appellant do not sustain his contention. The case of Southern Pacific Company v. Graham,
The judgment of the court below is affirmed.
Affirmed.