Houghton v. Tibbets

CHIPMAN, C.

—Action to foreclose a mortgage. Defend ants Lewis Jacobs and Lewis Meyerstein, partners as Bank of San Bernardino, appeared and filed a cross-complaint against all the other defendants in the action, whereby they sought to foreclose a mortgage against defendants Tibbets and wife. Appellant William T. Curtis was named as a party defendant in the cross-complaint. The only service of the complaint upon Curtis, as shown by the record, was proved by affidavit, in8 which it is stated that affiant “personally served the same on W. F.. Curtis, one of the defendants named in said action.” There is but one defendant of the name of Curtis. Default was entered against W. E. Curtis. The judgment recites as follows: “William T. Curtis having been, regularly served with process and time for answering having expired, and they [referring to all defaulting defendants] not having answered, but made default, and the findings and decision of the court having been made and filed, now, therefore, the judgment of the court is,” et cetera. The cross-complaint is against the plaintiffs and against William T. Curtis, among other defendants, but there is no evidence of its service upon Curtis and no recital in the findings or judgment that it was served upon him. The judgment forecloses the mortgage of plaintiffs and the mortgage set out by the cross1eomplainants and directs the sale of all the mortgaged property. Defendant Curtis appeals from the judgment. There is no evidence in the record that W. F. Curtis and William T. Curtis are the same person, except as it may be inferred from the foregoing. Appellant claims that the person sued and the person served are not the same person, for,

prima facie,

two different names designate two different persons. In support of the claim

McNally v. Mott,

3 Cal. 235, and

Sutter v. Cox,

6 Cal. 415, are cited. In the latter of

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these cases one of these defendants was sued by the name of John Cox. Service was returned upon James Cox and the judgment was against J. Cox, and Cox appealed. The court said: “This is error, unless there was something in the record to show that the person served was the person sued.” The judgment was reversed as to Cox and affirmed as to the defendants. 'Assuming, and we think correctly, that if the return had shown service upon W. T. Curtis it would have been sufficient, respondent invokes the rule that the variance in the middle initial is immaterial. ' The authorities so hold generally as to the middle initial, but we understand the rule to be otherwise where the Christian name of the person is not given, but is designated merely by initials; and it was so held in the recent case of