Egbert McRee et al. v. G. B. Brown, 45 Tex. 503

Moore, Associate Justice. While it is undoubtedly true, as was said by Justice Lipscomb in the case of M’Clelland v.

Smith, 3 Tex., 210, that the stringency with which the rule as to a variance between the cause of action declared on and the evidence offered to support it has been greatly relaxed by the more recent decisions, in the English as well as American courts, from the rigidity with which it was formerly adhered to and enforced, yet we have been cited by the defendant in error to no case, and we think none can be found, which will sustain a judgment by default against Bobert McBee, on citation by publication to Bobert McKee.

There is, indeed, in our opinion, a palpable distinction and marked difference in the question presented by the objection of variance between the instruments offered in evidence and described in the pleading and that which has to be determined, when it is claimed that the party against whom judgment has been rendered by default is not the same person to whom citation was issued • and upon whom constructive service has been made by publication.

If there is a mere immaterial discrepancy in the manner of writing or spelling the name of the defendant in .the citation and the judgment, the doctrine of idem sonans may be invoked to sustain the judgment, because, in such case, it is manifest to the court that the party against whom the judgment is rendered is in fact the same person upon whom the citation was served. And when personal service is had on the proper party, though he has failed to apjiear, there may be more reason in holding him bound, notwithstanding an error in the citation, than when notice is given merely by publication.

In support of a judgment against a non-resident on constructive service, evidently the court should indulge in no presumption not strictly and clearly warranted by the record. Certainly the names McKee and McRee, neither to the eye nor ear, convey the idea that they refer or apply to the same person.

There may be some sort of euphony in their pronunciation; but there is no more similarity of sound between them than there is between “ Doe ” and “ Roe; ” and from reading them it would not be supposed that-the same person was referred to more readily than would we come to a like conclusion from reading the names of these celebrated legal entities. There is also another ground upon which the objection to the judgment for want of sufficient service upon McRee must be held fatal.

The original petition is brought to recover money alleged to have been paid out at the special instance and request of the defendant to discharge a judgment against him recovered by Ireland, while the cause’ of action set up in the amended petition is not to recover the money paid to Ireland, but money alleged to have been collected from plaintiff on a judgment against him in the United States Circuit Court for the Eastern District of Texas, wrongfully recovered by McRee after the payment as aforesaid to Ireland.

This is evidently a different cause of action from that set up in the original petition; and under such circumstances a judgment by default cannot be taken against the defendant, who has made no appearance, merely by reason of the service of the original petition. (Morrison v. Walker, 22 Tex., 20 ; Erskine v. Wilson, 27 Tex., 118.) But though Brown, as he alleges, has paid the same debt twice, it may be questioned w'hether he has taken the proper course or applied to the proper tribunal for relief.

From the statement of facts incorporated into and forming a part of the judgment, it seems that his debt to James & Co. was one for which he was jointly liable with Mayfield and Cotton. If it was a partnership debt, it is held in many courts that he could not he forced to pay it on a separate writ of garnishment; and if he has done so, without a proper effort to protect himself, he is not entitled to relief. (Drake on Attach., sec. 561 and note 627.) It is not shown whether the writ of garnishment by Ireland was served before or after the bringing of the suit in the United States Court.

If it was afterwards, it seems to be held by the Supreme Court of the United States (Wallace v.

M’Connell, 13 Pet., 136) that the garnishment cannot arrest the suit or preclude the plaintiff from recovering judgment in that court; nor can the garnishee protect himself by pleading the garnishment puis darin continuance. (Drake on Attach., secs. 701, 702, 703.) And if Brown was entitled to relief against the last judgment, it may also be well questioned whether he should not have gone to the court rendering the judgment to obtain it, instead of, in effect, attempting to correct it by a- collateral proceeding in another tribunal.

Apart, however, from these suggestions, which are merely presented for proper investigation and consideration, if necessary-in the future progress of the case, we think it quite obvious that the petition on which the judgment is rendered fails to present the facts and circumstances connected with and under which the alleged payments were made, with sufficient distinctness and certainty to entitle Brown to the relief for which he asks. The answers of Ballinger, Jack & Mott to the writs of garnishment positively deny any indebtedness or possession of any property or effects belonging to the defendant McKee.

And in then answers to the interrogatories propounded to them by Brown, they also deny that they knew or believed that the name “ McKee ” in plaintiff’s petition was a mistake for “ McKee.” Their answers were not controverted; and even if the judgment against McKee could he upheld,, the judgment against them, being in direct conflict with their answers, cannot be sustained. The judgment is reversed and the cause remanded. Reversed and remanded.