In this record we are unable to find any evidence which tends to establish that Johanna Beck and Johanna Berber is one and the same person. That she is the same person, is not proven by the tr.anscript of the record and judgment of the Circuit Court of St. Louis county, in Missouri, and no other proof was adduced on the trial. By the transcript it appears that Johanna Beck, with others, was sued, and service only being had on appellee, the suit was dismissed as to her and Soergel, the other defendant, and judgment was rendered on a default alone against appellee. This record does not prove, or in the slightest degree tend to identify her as Johanna Berber. For aught that appears, she may be wholly a different person, and from the entire dissimilarity of the names, such is the presumption, until it is rebutted by proof. Although the presumption may be that appellants were married, until that fact was put in issue by a plea in abatement, yet it does not follow that Mrs. Berber is the same person who was sued as Johanna Beck. In the absence of proof of that. fact, the court below erred in rendering judgment against appellants.
Again, there is no evidence in this record that appellee was the surety of J ohanna Beck, even had it been proved that she had after-wards intermarried with appellant, Berber. It is true that there was such an averment in the petition filed in the St. Louis Circuit Court, but she was'not a party to the record, and cannot be harmed by the default. When the suit was dismissed as to her,, she ceased to be a party to the record, and is not concluded by it, any more than is any other stranger to that proceeding. The appellee and the plaintiff in that suit, and their privies, are undoubtedly concluded by it, but it is not binding on strangers. This record fails to show that she was liable either as principal or privy. There was not read in evidence in the Circuit Court any bond . or other instrument upon which this proceeding was based, by which to establish her liability to repay to appellee the amount paid by him, in satisfaction of the judgment read in evidence on the trial below, nor was any agreement by her to pay it in any manner proved, nor was anything shown from which the law could imply a request. Before a liability on her part can be created, either an express or an implied agreement must be established. In the absence of such proof, the court below erred in rendering a judgment for the plaintiff.
For these reasons we are of the opinion that the court below erred, and that the judgment must be reversed, and cause remanded.
Judgment reversed.