Hammer Collections Co. v. Ironsides Computer Corp.

Opinion

ROTH, P. J.

In its summons and complaint incident to a suit brought on an assigned claim, respondent Hammer Collections Co., Inc. (Hammer) named as defendant “Ironsides Computer Corporation, also known as Parthenon Computers, Inc., a corporation, doing business as Ironsides Computers.” After these documents were served on appellant Parthenon Computer, Inc. (Parthenon), Parthenon notified Hammer it did not intend to respond, owing to the fact it had been served “On behalf of Ironsides Computer Corporation”

1

but was not itself that corporation nor known by that name. Hammer thereafter obtained a default judgment and a writ of execution, which it levied upon Parthenon.

When Hammer agreed at Parthenon’s request to have the default judgment set aside and to permit Parthenon to plead in the cause on condition of a deposit of money sufficient to secure any judgment Hammer might recover, Parthenon not only answered the complaint but cross-complained as well, charging Hammer with abuse of process.

[901]

[902]

There is no question that Parthenon was in all respects save one properly served in the action and was fully apprised of the fact and the nature of the pending litigation herein. What is maintained is that, even so, it was not lawfully made a party to the proceedings, such that Hammer, knowing that it had not been, abusively took its default and levied upon its assets, because Parthenon is not, and is not known as, Ironsides Computer

Corporation.

It is conceded at the same time that Parthenon

does business as “Ironsides Computers.”

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In other words, what we are asked to find is that, because there is no entity precisely denominated Ironsides Computer Corporation, the service of summons and complaint upon Parthenon Computers (see fn. 2) was invalid so as to permit the cross-complaint for abuse of process. That request, however, must be denied.