Petersen v. Vane

PETERS, P. J.

Plaintiff, Antone Petersen, brought this action in equity to set aside a default judgment taken against him by defendant in a prior municipal court action. The prior municipal court action was brought by the present defendant to recover for personal injuries received by him as a result of a collision between the bicycle on which defendant was riding and an automobile driven by the plaintiff’s son. From a judgment denying plaintiff the relief requested, plaintiff prosecutes this appeal.

Appellant urges that he was never brought within the jurisdiction of the municipal court for the reason that the service upon him, as a fictitious defendant, was improper. He therefore contends that the default judgment should be declared a nullity.

The facts are as follows: On October 3, 1938, respondent Vane was injured by an automobile driven by Roy Petersen, son of appellant. On September 30, 1939, Vane instituted an action in the municipal court against Roy and others. The defendants were designated in the complaint and summons as “Roy Robert Petersen, Walter Petersen, First Doe, Second Doe, Third Doe, Fourth Doe, individually and as co-partners doing business under the firm name and style of Antone Petersen & Sons.” The automobile driven by Roy at the time of the accident was registered in the name of Walter, another son of Antone. Antone was engaged in the contracting business and Roy and Walter and another son, Herbert, worked in the business. Prior to the accident Antone had secured a contractor’s license, the license in

[60]

dicating that Antone was the owner of the business. After the accident there was filed in San Francisco a certificate of Antone Petersen doing business under the fictitious name of Antone Petersen & Sons. There was also evidence, however, that, although Antone ran a union shop, none of the boys belonged to the union. If they were mere employees, under the union contract they should have joined the union, but if partners they were not required to do so. There was also testimony that no payroll deductions for the various social security taxes were made from the son’s salaries as was required by law if they were mere employees. The theory of the municipal court action was that Roy was a partner in the firm and that the tort was a partnership tort.