Ferry v. North Pacific Stages

California Court of Appeal Mar 6, 1931 No. Docket No. 4041.Published

Before: Thompson

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Holding. The court held that the trial court correctly vacated a default judgment because the defendant association was never properly named as a party defendant in the complaint, and thus the court lacked personal jurisdiction over it.

Issues

Whether a notice of appeal is fatally defective due to a misidentification of the defendant in the notice.
Whether an association is a party defendant when the complaint names individuals doing business under a firm name but does not name the association as a separate entity.
Whether the court acquired jurisdiction over the association to render a default judgment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Notices of appeal are not strictly construed, and an appeal will not be dismissed because of a misdescription of the judgment or order to which it relates unless it appears that the respondent has been misled by such misdescription.”

MR. JUSTICE THOMPSON (R. L.) Delivered the Opinion of the Court.

This is an appeal from an order granting a new trial after judgment by default had been rendered against the respondent. A motion to dismiss the appeal was also made on the ground of a defective notice.

The plaintiff brought this action for damages for personal injuries alleged to have been sustained while riding as a passenger in an autostage owned and operated by the defendants. The suit was brought against North Pacific Stages, a corporation; Seattle-Portland-San Francisco Auto Stage Company, a corporation; D. M. Shattuck, John Doe Christie et ah, associated together and doing business under the firm name and style of Seattle-Portland-San Francisco Auto Stage Company. Summons was duly issued therein. An affidavit of service of summons was filed reciting that process in said cause was personally served upon “Seattle-Portland-San Francisco Auto Stage Co.,

an association,

... by delivering to and leaving with . . . Fred Gordon, a member of said association”, a copy of the summons and complaint. Fred Gordon appeared personally and answered the complaint. The defendant Seattle-Portland-San Francisco Auto Stage Company did not appear or answer as a corporation, as an association, or at all. October 14, 1927, upon demand of the plaintiff, the clerk entered default. against the Seattle-Portland-San Francisco Auto Stage Co., an association. Subsequently, on motion of the plaintiff, and by consent of the court, the complaint was amended by striking therefrom the term “corporation” as it was used to describe and identify the defendant Seattle-Portland-San Francisco Auto Stage Company, and by substituting therefor the term “an association”. A jury was impaneled. Evidence was adduced at the trial, of damages resulting to the plaintiff on account of a collision of the autobus with a certain bridge. A verdict of $10,000 was returned against the Seattle-Portland-San Francisco Auto Stage Company, an association. For this sum a judgment

[350]

was rendered against the last-mentioned company as ■ an association. Subsequently, on motion of the said Seattle-Portland-San Francisco Auto Stage Company, the judgment against it was set aside May 31, 1929, on the ground that the court had acquired no jurisdiction to render judgment against this company. From this order vacating the judgment, the following notice of appeal was duly served:

Ferry v. North Pacific Stages

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