The evidence shows that the same agents and attorneys who appeared for the company first named appeared for the one named in the amended petition. In the answer to the original *Page 571 petition, there was no suggestion that the wrong defendant was in court, although it claims it was not operating the road, but contributory negligence on the part of appellant and the safe condition of the spark arresters were fully pleaded. After the time had elapsed which would bar the claim, and the name of the party sued was amended, it was then made known that the agents of appellant were before the court representing another corporation and not appellant. Such action would not succeed were individuals concerned, and we can see no reason why there should be a different rule as to the corporations.
In 1888, a case very similar to the one before us was decided by the Supreme Court of Illinois. In that case the suit was originally brought against the Pittsburgh, Fort Wayne and Chicago Railroad Company. The citation was served on the agent of the Pennsylvania Company, against whom it was intended to bring the suit, and the Pennsylvania Company appeared by its solicitors, and without pleading in abatement pleaded to the merits. After an amendment setting up the mistake in the name, the Pennsylvania Company pleaded limitation. To answer this plea, the plaintiff contended that the Pennsylvania Company was the one sued in the first place, but that it was sued by the wrong name, to-wit: the Pittsburgh, Fort Wayne and Chicago Railroad Company. The court said: "The law undoubtedly is, that where the real party in interest and the one intended to be sued is actually served with process in the cause, even though under a wrong name, he must take advantage of the misnomer by plea in abatement in such suit, and if he does not, he will be concluded by the judgment or decree rendered, the same as if he was described by this true name. If the Pennsylvania Company was the real party sued and served, though by the wrong name, it should have pleaded the misnomer in abatement. It did not do so." Pennsylvania Company v. Sloan, 8 Am. State Rep., 337. In the case above cited, the Pittsburgh, Fort Wayne and Chicago Railway Company had leased its road to the Pennsylvania Company. The following cases are also in point and sustain the decision of this court: Bank of Utica v. Smalley (N.Y.), 14 Am. Dec., 526; Trull v. Howar (Mass.), 57 Am. Dec., 85.
We adhere to the opinion that there was no error in the District Court assuming jurisdiction of the part of the claim that was transitory. The jury was instructed that appellee could not recover for the value of the house, and the verdict was only for the value of the personal property in the house. The case of Railway v. Jackson, decided by the Supreme Court since our opinion was rendered (33 S.W. Rep., 857), is cited as being in conflict with the opinion in this case. The cause of action in the Jackson Case originated in the Republic of Mexico, and the grounds upon which it was held that the Texas courts had no jurisdiction seem to be the dissimilarity of the laws of Mexico to those of Texas, and the overburdened condition of the dockets of the courts of Texas. The laws of New Mexico were not alleged and proved in this case to be different from those of Texas, and in the absence of such allegation and proof, *Page 572 they will be presumed to be the same. Porcheler v. Bronson,50 Tex. 555; Abercrombie v. Stillman, 77 Tex. 589 [77 Tex. 589]; Armendiaz v. Serna, 40 Tex. 291 [40 Tex. 291]; James v. James, 81 Tex. 373.
There is no evidence in the record that the docket of the District Court of El Paso County is overburdened with cases, and this court certainly has no judicial knowledge of the condition of the docket of any court in Texas, except its own, and therefore this ground can have no force in shaping the decision in this case. As said by the Supreme Court, in the Jackson Case, "This is a transitory action, and may be maintained in any place where the defendant is found, if there be no reason why the court whose jurisdiction is invoked should not entertain the action." No reason has been shown why the District Court of El Paso County should not have assumed jurisdiction of the case.
The motion is overruled.
Overruled.