
    W. G. Waller v. Frank Edmonds.
    Identity of name—Presumption in favor of judgment.—Suit was instituted against two defendants. One accepted service of citation. On the other, citation was served by the sheriff. The name of the defendant accepting service and of the sheriff was the same: Held, On error, in the absence of testimony, it will not be presumed, from the identity of name, that the sheriff was the same person who, as defendant, accepted service. A judgment by default against both defendants in such case affirmed.
    
      Error from Erath. Tried below before the Hon. J. P. Osterhout.
    
      H. H. Neill, for plaintiff in error.
    No brief for defendant in error came to reporters.
   Roberts, Chief Justice.

This is a writ of error from a judgment by default, rendered in favor of Edmonds against W. A. Jenkins, the principal, and W. G. Waller, the surety on the note sued on. It is assigned as error that W. G. Waller, who was the surety, and who had waived the service of process, was the same W. G. Waller who, as sheriff of Erath county, served the original citation on the principal, W. A. Jenkins.

The record presents no evidence of this fact, except the similarity in the initial letters of the given name and the similarity of the surname, as they appear in the petition, and in the return of the sheriff on the citation which was served upon W. A. Jenkins.

As against the correctness of the judgment rendered, the court will not presume that W. G. Waller, the sheriff, was the same W. G. Waller who was a party to the suit, as the question is presented in this case. They may have been different persons, notwithstanding the similarity in the initials of the name, and in favor of the judgment we should so presume, rather than the contrary, to reverse it.

Judgment affirmed.

Affirmed.  