This suit was instituted by appellee on September 20, 1892, against a defendant described as the Southern Pacific Railway Company, for damages arising from the destruction of a certain windmill and tower and a dwelling house and its contents situated in Dona Ana County, New Mexico. It was alleged that the Southern Pacific Railway Company was a foreign corporation, with an agent in El Paso, Texas, and that appellee was a resident of New Mexico. An amended petition was filed on June 22, 1895, in which the defendant was styled the Southern Pacific Company, in which, in addition to the allegations in the original petition, it was alleged that the original petition correctly described the local agents of the appellant, but by mistake it had been designated the Southern Pacific Railway Co., and that in fact the railroad was operated by appellant when the fire occurred that destroyed the property. To this petition appellant interposed pleas that the claim was in its nature local and not transitory, that the property was destroyed in New Mexico, and the cause was not in the jurisdiction of the trial court, and that the cause of action was barred by limitation. For answer, in addition to a plea of not guilty and general denial, it was alleged that if the property was destroyed, it was near the line of the Southern Pacific Railroad Company, in New Mexico, and denied that appellee sued appellant under a misnomer, and that the cause of action was barred by limitation. The proper construction of the appliances of the engine were also pleaded. The exceptions were overruled, and the cause being tried by a jury, resulted in a verdict and judgment for appellee for $693.75.
Personal property of appellee of the value for which the verdict was rendered was destroyed by the negligence of appellant. The spark arresters used on the locomotive of appellant were defective, and emitted large sparks or cinders which fell on the roof of appellee's house, and it, with its contents, was consumed.
The first and third assignments are not well taken. Under the statutes of Texas, it may be true that the District Court of El Paso County was not compelled to assume jurisdiction of and try a cause, even though it was transitory in its nature, and had the District Court, in the exercise of a sound discretion, refused to entertain jurisdiction of the case *Page 568 at all, this court would not have felt called upon to review its action. The court, however, had the power to try the case as to the personal property between citizens of other states, even where the cause of action arose in another state, and when it assumed jurisdiction, its action will not be disturbed in the absence of any facts tending to show that there was an abuse of its discretion. Morris v. Railway, 78 Tex. 17; Gardner v. Thomas, 14 Johns., 133.
We are of the opinion that the cause of action, so far as it concerned the personal property, was a cause that might have arisen anywhere, and was therefore transitory. Cooley on Torts, 471. The action, so far as it concerned the house, could only have arisen where the house stood, and was local. We cannot go into the question of fixtures and inquire into the possibility of the owner at some day removing the house, and giving it the character of personal property.
The second and fourth assignments of error raise the question of limitation. It is contended that the suit having been originally brought against the Southern Pacific Railway Company, and the amendment setting up a mistake in the name, and alleging that appellant was the corporation intended to be sued, having been filed after the expiration of the statutory time, that the cause of action was barred. In the original petition the corporation is described as operating a railroad into and through El Paso County, Texas; that it was a foreign corporation; that appellee's property was situated on the railroad owned and operated by the defendant, at a point known as "Hatch's Spur," and that H.D. Platt and Frank Voelcher were the agents of the corporation. To this there was no plea suggesting that the wrong defendant had been brought into court. In the amended petition the defendant is described in the same way, and it is alleged that its name had been incorrectly given in the original petition, that the citation had been served on the agent of appellant, and that the attorneys of appellant had appeared and answered to the petition without any effort to correct the misnomer or mistake in name, and that the corporations were one and the same.
It was proved that no such corporation as the Southern Pacific Railway Company was in existence; that there was a "Southern Pacific Railroad Company," a New Mexico corporation, and that the Southern Pacific Company, a corporation chartered by the laws of Kentucky, had legally leased and was operating the railroad of the New Mexico corporation; that the Kentucky corporation owned the engine from which the sparks that caused the fire were emitted, and employed those operating it. It was also shown that it was the intention to sue the Southern Pacific Company, and that the word "Railway" was interpolated by mistake; that suits had been brought against the Southern Pacific Railway Company, which had been paid and settled by the "Southern Pacific Company." The testimony, in fact, shows clearly, not that the wrong defendant had been sued, but that no such corporation had ever existed as the "Southern Pacific Railway Company," and there was clearly a misnomer of the "Southern Pacific Company." This being the case, *Page 569 the amendment curing the defect was properly allowed. In an Alabama case it was held, "that there is a well marked distinction between a misnomer, which incorrectly names a corporation but correctly describes it, and the statement in the pleading of an entirely different party." Smith v. Plank Road Co., 30 Ala. 650.
Commenting on the above, Thompson, in his work on corporations (vol. 1, sec. 293), says: "The distinction is that an amendment is always allowable, curing a mere misnomer of the real party which sues, but that an amendment is not allowable introducing an entirely different party as plaintiff, unless such party may properly be introduced as the successor in interest of the party originally bringing the action. And the same rule would, it is supposed, apply, mutatis mutandis, where a corporation is defendant." It has always been the rule to hold that a variance or mistake in the names of existing persons is not fatal to their contracts, when there is sufficient description of the parties whereby they may be known, but the question whether this applied to corporations which must sue and be sued in the corporate name has not been as well settled. In an early English case, The Mayor and Burgesses of Lynn Regis, the defendant, who was sued on an obligation given to a corporation, interposed a plea of non est factum, and relied upon a variance in the bond from the true name of the corporation. The court gave judgment for the corporation. In another English case, it was urged that the corporation, being a creature of the law and having no vitality except that given to it by the statute by a certain name, misnomer could be taken advantage of on the trial. It was decided that it could not so be taken advantage of, and was only pleadable in abatement, as in the case of a person. Commenting on the above cases, the Supreme Court of Massachusetts said: "It may be objected that the variances in the cases cited of misnomer of corporations are not considerable or material, as the variance is in the case at bar, where the name of the promisees, as it is expressed in the notes, is totally different from the name of the plaintiffs in their corporate capacity. The inquiry, however, is, in this case, as it was in the cases of misnomer which have been cited, of the description of the promisees, or parties in the note or contract declared on. Does the name in the note sufficiently indicate the plaintiff? Were they known by it as the promisees? Now this depends, in part at least, upon an inquiry of facts, which may or may not be proved; and which may be provable by evidence extraneous to the note." Medway Manufacturing Co. v. Adams,10 Mass. 360. The Supreme Court of the United States, discussing the same matter, approves the Massachusetts case, and says, "the only question open here is, whether, if a mistake be made in the name of a defendant, and he fails to plead it in abatement, the judgment binds him, though called by a wrong name. Of this we have no doubt. Evidence that it was an erroneous name of the same person must therefore be admissible; otherwise a mistake in the defendant's name instead of being available only by a plea in abatement, would render a judgment wholly inoperative." *Page 570 Insurance Co. v. French, 59 U.S. 451. The case of Southern Pacific Company v. Block Bros. 84 Tex. 21, seemingly is in conflict with the opinions cited, where the Southern Pacific Railway Company was cited, and after amendment judgment rendered against the Southern Pacific Company, it was held that the two corporations were distinct entities, and the judgment by default was erroneous. The conflict, however, is only seeming and not real. In the Block case the Southern Pacific Railway Company was cited, and afterwards an amendment was filed stating the name of the defendant as the Southern Pacific Company. There was no service of the amendment on the Southern Pacific Company, and in the absence of any appearance on the part of the latter company, and without proof as to identity, it was rightly held that a judgment by default was improperly taken. The case before us is totally different from that. The proof shows that no such corporation as the "Southern Pacific Railway Company" had ever existed. Citation to this non-existent corporation was served on the agents of appellant, and its attorneys appeared and defended, never in any manner hinting at the misnomer. Who were they representing? Not the impossible "Southern Pacific Railway Company;" it was a myth, and we cannot entertain the thought for a moment that they would so trifle with a court as to appear as attorneys for a corporation not in existence. Should it be held that the Southern Pacific Railway Company is identical with the Southern Pacific Railroad Company, which was the owner and lessor of the railroad on which the property was destroyed, still there is nothing in the record that tends to show that the latter had any agents or attorneys in El Paso County, and the fact remains that the attorneys of the appellant appeared and answered for it.
The uncontradicted evidence shows that the property of appellee was destroyed by very large live cinders from the locomotive of appellant. It was shown without contradiction that cinders of the size of those in question could not escape from a locomotive with proper appliances, and while the third paragraph of the charge may have required more at the hands of appellant than the law demanded, yet, in view of the testimony, it could not have injured appellant. Any error in the paragraph above mentioned was cured by a charge asked by appellant and given by the court. There is no complaint that there was a conflict between the requested instruction and the charge of the court.
All the issues raised in the assignments have been disposed of, and finding no error, the judgment of the District Court is affirmed.
Affirmed.
ON REHEARING.