Armstrong v. Superior Court

California Court of Appeal Sep 13, 1956 No. Civ. 21920Published

Before: Nourse (Paul)

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Holding. The court held that service of summons on a defendant sued under a fictitious name is invalid and insufficient to confer personal jurisdiction if the summons fails to bear the mandatory endorsement required by section 474 of the Code of Civil Procedure.

Issues

Whether a defendant makes a general appearance by citing authorities in a motion to quash that mistakenly argue the merits of the complaint.
Whether a defendant sued under a fictitious name can be served with process if the complaint does not state a cause of action against them.
Whether the 1953 amendment to section 474 of the Code of Civil Procedure makes the requirement of a summons endorsement mandatory for personal jurisdiction.

Disposition. reversed

Quotations verified verbatim against the opinion

“This statute is not directory but mandatory, and its effect is to deprive the court of the right to proceed against a defendant served with such a defective summons”

“The fact that he attempted to demonstrate that the court did not have jurisdiction of his person because he was not a party to the action by citing authorities which he mistakenly believed supported his contention did not change his appearance”

NOURSE (Paul), J. pro tem.

Petitioner seeks a writ of mandate pursuant to section 416.3, Code of Civil Procedure, requiring respondent court to issue an order quashing the service of summons on petitioner in an action brought by one Dolginer to recover damages for personal injury.

Dolginer’s action was commenced on December 8, 1954. The complaint named as defendants one Stover and Doe One and Doe Two. By paragraph I of the complaint it is alleged “That the defendants Doe One and Doe Two are fictitious, their true names being unknown to plaintiff and when the same are ascertained, leave of court will be asked to amend this complaint accordingly.”

In the charging paragraphs of the complaint it is alleged that the defendants operated a certain automobile in a careless and negligent manner so as to cause the same to collide with plaintiff’s automobile, and “That by reason of

[422]

the aforesaid carelessness, recklessness and negligence of the defendants, and each of them” plaintiff’s automobile was damaged, the plaintiff sustaining injuries to his person.

The petition here alleges, and its allegations are admitted by the demurrers of respondent and real party in interest, that on April 8, 1956, a copy of the summons and complaint was served upon petitioner and that the summons so served did not bear the endorsement required by section 474, Code of Civil Procedure. On April 17, 1956, petitioner filed in the respondent court a notice of special appearance and motion to quash service of summons upon the ground that he was not named as a defendant in the action and on the further ground that the summons did not bear the endorsement required by section 474 of the Code of Civil Procedure. Petitioner asked no relief from the court other than that the service of summons be quashed.

By his notice of motion to quash the service of summons, petitioner only designated, as the matters upon which his motion would be based, “all papers on file in this ease and the attached Memorandum of Points and Authorities.” In the exhibits to supplemental points and authorities filed with respondent court, petitioner filed with the court his affidavit, the facts stated in which establish the failure of the summons served upon him to be endorsed in accordance with section 474, Code of Civil Procedure. Thereafter the court denied his motion.

Armstrong v. Superior Court

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