101 So. 653 | Ala. | 1924
In an action on a judgment the burden of proof is of course on the plaintiff to show the existence of a valid judgment, and the identity of the judgment defendant with the defendant presently sued. From an identity of names there arises a presumption of an identity of persons; but, if the name of the person designated in the judgment is not identical with the name of the person presently sued, the burden rests upon the plaintiff to establish that identity to the reasonable satisfaction of the jury. The trial of such an issue necessarily involves a resort to parol evidence. Tarleton v. Johnson,
"Properly, each party should be designated by his true name, both Christian name and surname in full. But the omission of a party's Christian name, or the use of an erroneous Christian name, is a mere irregularity which will not render the judgment void, and may not even render it subject to reversal, as where the defect is cured by other parts of the record. * * * And the use of initials in lieu of the Christian name has been said to render the judgment merely irregular and not void." 33 Corp. Jur. 1200, § 132. And authorities are numerous to the effect that "a defendant who is sued by the wrong name, but with due service of process upon him, who fails to plead the misnomer and suffers a judgment to be taken against him in such name, may be connected with the judgment by proper averments and will be bound by it." 33 Corp. Jur. 1200, § 132, and cases cited under note 18.
Under the evidence before the court, the jury were properly instructed that if "the defendant in this case was served with a copy of the summons and complaint in the suit which resulted in the judgment sued on, * * * and that she was so served as the defendant in said suit, your verdict must be rendered in favor of the plaintiff in this cause."
But the trial court did not restrict the evidence to this issue, and, against plaintiff's seasonable objections, allowed defendant to introduce a large amount of testimony tending to show that she never was in business, and never was indebted to the plaintiff by the notes or account sued on, and other matters wholly irrelevant to the issue, the effect of which was to impeach the obligation of the judgment collaterally.
In this the trial court was in error, and for it the judgment must be reversed, and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur. *34