60 Tex. 276 | Tex. | 1883
This suit was instituted and conducted against W. J. Williams & Sons and another. The service as to the firm was made on W. J. Williams alone, the senior member and head of the firm of W. J. Williams & Sons.
Under our statute (R. S., art. 1224), the effect of such service was to bring before the court the firm of W. J. Williams & Sons.
A judgment such as the one under consideration, rendered by-virtue of such service, is valid and effectual, not only against the firm, but under the terms of the statute is valid and binding against W. J. Williams in his individual capacity also. It bound him. It effectually and finally fixed his individual liability for the amount in dispute.
The objectionable words in the judgment, which are supposed to change its character and give it additional effect as against W. J. Williams in his individual capacity, and to constitute a fatal variance between the appeal bond given and the final judgment rendered, are surplusage. They were probably or possibly inserted by the justice of the peace either by mistake or under a misapprehension as to their necessity. They give no additional force or virtue to the judgment.
As to the personal liability of W. J. Williams for the judgment, the legal effect was the same.
If regarded as surplusage, their omission from the appeal bond would not vitiate it. If they were inserted in the judgment inadvertently, or through mistake, they were the subject of amendment and correction. R. S., arts. 1354-1620.
As was well said by Mr. Justice Lipscomb in McKay v. Speak, 8 Tex., 377, “What was so obviously a mistake, . . . and could be amended by the record, will be considered as amended.”
We are of the opinion that the bond, under the facts and circumstances disclosed by the record in this case, was sufficient, and that the district court should have retained the cause for trial de novo.
The judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered November 2, 1883.]
