Kline v. Beauchamp

McCOMB, J.

These appeals are from orders (1) granting Dr. Vernon T. Kelley’s motion to quash service of summons upon him in the above-entitled action, and (2) denying plaintiff’s motion for permission to amend his complaint.

Viewing the evidence set forth in the conflicting affidavits filed by the parties in the aspect most favorable to the rulings of the trial court, as we must on appeals of this nature

(Dickinson

v.

Zubiate Min. Co.,

11 Cal. App. 656, 662 [106 Pac. 123];

Smith

v.

Pickwick Stages System,

113 Cal. App. 118, 122 [297 Pac. 940]), the essential facts are:

April 9, 1937, plaintiff filed a complaint seeking damages for alleged malpractice. Dr. C. Beauchamp and Dr. George Simms were the only defendants named, and the complaint was devoid of reference to either fictitious defendants or defendants whose names were unknown. January 4, 1938, Dr. Vernon T. Kelley, who never used or was known by any other name, was served with a summons and copy of the com

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plaint in the above-entitled action. He thereafter gave notice of special appearance and moved to quash the purported service of summons, which motion was granted. At the same time plaintiff’s motion for leave to amend his complaint by alleging that the true name of Br. George Simms was Vernon T. Kelley and that Vernon T. Kelley was sometimes known as Dr. George Simms was denied.

These are the questions presented for determination:

First: Is a motion to quash the proper procedure whereby to test the validity of service of summons and complaint upon a person who is not either by his true name or a fictitious name made a party to an action?

Second: Is service of summons upon a person who is not named as a party to an action valid?

Third: Is an order denying leave to amend a complaint appealable?