George v. Stensland

LANGDON, P. J.

This is an appeal by the defendant, Elizabeth G. Clarke, from a judgment entered on a verdict of a jury for $514, in the superior court of San Diego County, in an action for the recovery of the reasonable value of attorneys’ fees for professional, services rendered by the plaintiffs to the appellant.

This appeal was originally taken not only from the judgment, but also from an order denying a new trial, and from an order of nonsuit on a cross-complaint, and from an order made in proceedings supplementary to judgment and execution. It is stated, however, by the appellant in her opening brief, that she “waives and abandons any and all her rights to appeal from said order denying a new trial, and from said order in supplementary proceedings,” and prosecutes her appeal exclusive thereof.

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The principal point argued by the appellant, and the one she states to be the important feature of the case, is that the judgment was erroneously entered by reason of the fact that said judgment was entered against a married woman in a cause in which she was sued as the wife of another party defendant, named in the complaint as “John Doe,” and said husband of appellant was not served with summons in the action.

The facts pertinent to a discussion of the objection present some unusual features, and it will be necessary to state them rather fully. The plaintiffs sued, as aforesaid, to recover for legal services. The defendants named in the complaint are Elizabeth G. Clarke and John Doe. It is set out in the complaint that the services for wbich recovery is sought were contracted for by the defendant, Elizabeth G. Clarke, “being then and there an unmarried woman, and in the management of her own affairs.” It is further set out

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in the complaint as follows: “Plaintiffs further allege that they are informed and believe, and on such information and belief allege, that since this cause. of action accrued, the defendant, Elizabeth G. Clarke has married one John Doe, whose true name is unknown to these plaintiffs, but the plaintiffs have not sufficient information to determine whether or not, if defendant is married, her husband is a necessary party defendant, and plaintiffs pray that if it shall appear that the said defendant, Elizabeth G. Clarke is married and that her husband is a necessary party, he may be joined and his true name as defendant herein inserted, and that the true name of the defendant, Elizabeth G. Clarke be inserted herein in the event that she is shown to be married. ’ ’ Answer and cross-complaint was filed by Elizabeth G. Clarke, in which she did not deny the allegation of the complaint upon information and belief, with reference to her marriage. She made no mention of this allegation in any way, and answered under the name of Elizabeth G. Clarke. Appellant’s position is that as the allegations of the complaint regarding defendant’s coverture were admitted by a failure to deny • the same, that it 'became the duty of the plaintiffs to ascertain, by deposition or otherwise, the name of her husband, and to substitute such name for the fictitious name and serve him with summons.