Grey v. Milligan

CRAIG, J.

The plaintiff and respondent in the instant case filed a suit in replevin against J. T. Milligan, also including several fictitious names, and praying that upon discovery of the true names of other defendants they be substituted therefor. J. T. Milligan and the appellant Edwin S. Milligan were both served, the return of the sheriff showing that he had served John Doe, whose true name was Edwin S. Milligan. Upon his failure to make an appearance default was entered against the latter, and upon the trial it appearing that he had previously acquired possession of the property in controversy, the plaintiff dismissed as to J. T. Milligan and received a judgment against the appellant.

Twenty days after the trial appellant moved to set aside the judgment and for leave to answer, which was denied.

[329]

It was recited in affidavits accompanying the motion that, being served as “John Doe,” he had no means of knowing that he had been made a party defendant, and that since his father, J. T. Milligan, had been interested in the subject matter of the action, he immediately delivered the summons and complaint to him. It appears from the evidence, however, that one A. 0. Eekman, claiming to be the owner of certain real property and the livestock and accessories thereon, which was conducted as a poultry ranch in which he had invested about twenty thousand dollars, sold and agreed to deliver' to the plaintiff an undivided one-half interest therein. Oral and written demand were made upon J. T. Milligan for possession. As testified by one witness, there were “many heated words,” and he was ordered off the premises by the defendant last mentioned; that a representative of the plaintiff then said to him: ‘ ‘ Now, you know, Milligan, that we bought this property, and that we have bought Eekman’s interest in it, and we have got an order to get these chickens and the equipment, and we want you to deliver it.” It appears that this defendant’s son, E. S. Milligan, was present on May 29, 1926, when the foregoing demand was made, but said nothing. On June 4, 1926, when suit was filed, or less than a week later, Ms father did not have possession of the property here in dispute, but had delivered it to said son, who, as already observed, was properly served with a copy of the complaint, which he gave to the former, and permitted a default to be entered as to himself.