Fried v. Municipal Court

WILSON, J.

Appeal from judgment dismissing a petition for writ of mandate.

Petitioner brought an action in the municipal court of Los Angeles on a written contract signed by Mae Christian for the purchase of household furniture. Two persons were named as defendants under fictitious names. Defendant Christian failed to answer, whereupon a judgment by default was entered against her for the balance due on the contract, together with attorney’s fees.

Thereafter petitioner, plaintiff in the municipal court action, filed an affidavit with the clerk pursuant to section 989

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of the Code of Civil Procedure against one Neeeph 0. Fhren, purported to have been sued under the fictitious name of John Doe. A summons was issued against him in the so-called joint debtor proceeding. Upon his failure to respond to the summons his default was entered by the clerk. The plaintiff then applied for a judgment against Fhren pursuant to sections 989 to 994 of the Code of Civil Procedure. The clerk refused to enter judgment against him and upon application to the presiding judge of the court he likewise refused. The parties to this proceeding agree that the reason for the refusal was that Fhren did not sign the contract upon which the action was brought.

[378]

Petitioner then commenced the instant proceeding in the superior court praying for a writ of mandate directing the municipal court and its clerk to enter judgment by default against Fhren. A demurrer to the amended petition was sustained without leave to amend and judgment was entered dismissing the proceedings, from which this appeal comes.

A judgment against a joint debtor must be based upon the same cause of action as that on which the judgment was entered. In a joint debtor proceeding the complaint must be examined for the purpose of determining the obligation on which the original judgment was entered. The entire proceeding is statutory and exclusive and is in the nature of an action on the judgment.

(Cooper

v.

Burch,