Thompson v. Byers

ALLEN, J., pro tem.

Plaintiff recovered judgment in conversion in the lower court. This action was originally commenced against James C. Byers, who was sheriff of San Diego County and who levied an attachment on the stock of goods in an. action against C. X. Thompson. Plaintiff, who is the wife of C. X. Thompson, filed a third party claim. The attaching creditor filed with the sheriff an indemnifying bond and obtained judgment against C. X. Thompson. The sheriff sold the property under execution issued on the judgment. Subsequently James C. Byers died and appellant, who was appointed executrix of his estate, was substituted as party defendant in this action and appeals from the judgment. The first error relied upon is that the trial court erred

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in holding that plaintiff’s failure to file and publish any certificate of carrying on business under a fictitious name was immaterial as to her right to maintain the action. It is admitted that plaintiff was conducting business under the name of Home Specialty Company, and was retailing goods under such name. The court found that plaintiff had not, prior to the trial, nor at any time, published any certificate as required under section 2468 of the Civil Code. In an early case our Supreme Court held that section 2468 of the Civil Code relative to the filing and publishing of fictitious names, did not apply to actions of tort.

(Ralph

v.

Lockwood,

61 Cal. 155.) This case is cited in

Reeves

v.

First Nat. Bank,

20 Cal. App. 508, at 512 [129 Pac. 800, 801], where it expressly says: “This action was one for tort and hence does not fall within section 2468 of the Civil Code.” Appellant urges with some eagerness that this cannot be the law because this section of the code has • been amended since the rendition of the opinion in those cases by inserting the words “or transactions had” and cites cases from other jurisdictions supporting his contention. The eases cited do not bear out this contention. The case of

Farquharson