Roofing Sales Co. v. Wilson

Under date of November 19th a rule to show cause was issued in the above entitled cause and personal service made on the party intended.

It appears that the true name of the party intended is Everett H. Wilson and not Edward.

The suit was upon a note signed by Everett H. Wilson, “E. H. Wilson”. In bringing suit upon that note plaintiff, through excusable error, believed defendant’s first name to be Edward and so described him in the writ which was left at the usual place of abode. No appearance was entered by the defendant and on October 8, 1937, a default judgment was entered by the Clerk, who noted upon the file defendant’s correct address and mailed notice of such default. Later execution was issued and returned unsatisfied, after demand duly made on the party intended.

Everett H. Wilson, upon whom the original writ, the exe*385cution and the rule to show cause were all duly served now specially appears and through counsel discloses that he is in fact the E. H. Wilson who signed the note in suit and who actually owes the money and now discloses that he was misnamed in all of the papers and raises the question whether any supplemental judgment can enter against him under Chapter 297, Acts of 1937.

In my opinion, under these facts, upon proper motion, the writ may be amended to incorporate defendant’s true name and supplemental judgment be entered in accordance with justice.