Motores De Mexicali v. Superior Court

SPENCE, J.

Petitioner seeks a writ of mandate to compel the respondent court to proceed with the hearing on a petition for an order to show cause why a final judgment, previously entered only against a single defendant, Erbel, Inc., should not be corrected by adding the names of each of the real parties in interest herein as judgment debtors. Respondent court has indicated its intention to dismiss the petition without a hearing on the merits because it believes it lacks jurisdiction to act. The matter has been continued by that court in order to afford petitioner the opportunity to file the petition in this proceeding.

On June 9, 1953, petitioner filed an action in the respondent court to recover the principal and accrued interest due on certain automobile purchase drafts issued in the name of Bi Rite Auto Sales. The complaint named Erbel, Inc., as the sole defendant, and alleged that it was doing business under the fictitious name of Bi Rite Auto Sales. Service was made by delivery of a copy of the summons and complaint to the president of Erbel, Inc., William D. Cowan, one of the real parties in interest here. Neither he nor the other two real parties in interest, Erwin G. Resnick and R. William Cowan, were named as parties or served in their individual capacities. On June 25, 1953, a judgment by default in the amount of $26,900.83, plus interest and costs, was entered against Erbel, Inc., as “a California corporation, individually, and doing business under the fictitious name of Bi Rite Auto Sales.” Shortly thereafter, Erbel, Inc., went into bankruptcy and turned over its assets to a trustee in bankruptcy. Petitioner filed a claim based on the default judgment and received $6,383.26 in dividends from the bankrupt estate. In addition, it collected $240.64 through an attachment levied on the used cars and other personal property belonging to Erbel, Inc. The default judgment became final. The unpaid balance on it, amounting to $20,520.29, together with the accrued interest, now exceeds $26,000.

On March 6, 1957, petitioner filed in respondent court a petition for an order to show cause “why the judgment entered ... on June 25, 1953, should not be corrected by add

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ing thereto the names of Erwin G. Resnick, William D. Cowan and R. William Cowan as judgment debtors. ...” In substance the primary allegations of the petition were as follows: Petitioner sold used automobiles to Resnick and the Cowans, and received in payment bank drafts issued in the name of Bi Rite Auto Sales. The drafts were dishonored upon presentation. An immediate search of the public records disclosed that a California corporation known as Erbel, Inc., had filed the fictitious name certificate for Bi Rite Auto Sales. Relying on that certificate, petitioner brought the action on the drafts against Erbel, Inc., and secured the default judgment which subsequently became final. During the course of the bankruptcy proceedings of Erbel, Inc., and another creditor’s action