Jarrett v. City Electric Railway Co.

Simmons, C. J. 1. Where it clearly appears that, in the trial of the questions brought up by a bill of exceptions, no evidence was introduced before the trial judge, the writ of error will not be dismissed because the bill of exceptions does not expressly state that no evidence was introduced. 2. Where Jarrett brought suit against a street-railway company and the plaintiff’s name was properly stated in the body of the original petition, but was written “Jarvitt” in the “backing” of the petition and in the caption of the process annexed by the clerk and was also written “Jarvitt ” in the copy petition and in the caption of the copy process served upon the defendant, and on the trial the court allowed the name of the plaintiff to be corrected in the caption of the process, in the “backing” of the petition, and on the docket, prior to which time the defendant had answered to the merits, it was not necessary that the process as amended should be served upon the defendant. If, in consequence of the amendment, the defendant was unprepared to go to trial,-the court would doubtless have granted it time for preparation. 3. In such case it was, therefore, error for the court to dismiss the case because the plaintiff refused to have the defendant served with the process as amended. Judgment reversed. All the Justices concur.