Hoffman v. Keeton

SMITH,C.

—This is an appeal from a judgment foreclosing a mortgage. The appeal is by the defendant Sinsheimer, to whom, subsequently to the execution of the mortgage, and before the commencement of the suit, an undivided half of the mortgaged premises was .conveyed hy the mortgagors, the

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defendants Keeton. The mortgage and the note secured by it were executed January 1, 1891, and became due two years after date. The suit was commenced December 28, 1896, against the defendants Keeton, and fictitious defendants, John Doe, etc. But by an order made April 13, 1897, reciting that “ the true name of John Doe [was] in fact B. Sinsheimer,” it was directed that the latter name be inserted in the complaint in lieu of the former. The complaint, it seems, was not actually amended. The defendant Sinsheimer was duly served, and filed his answer, setting up that his name was not John Doe, and that the action was barred by the provisions of section 337 of the Code of Civil Procedure. The court found against him on the latter issue, and judgment was entered accordingly. The points made for reversal are: 1. That there is nothing in the complaint to show that appellant was a party to the action, and consequently that as to him the judgment is in fact void; and 2. That the action was barred as to him by section 337 of the Code of Civil Procedure.

1. With regard to the first point, the order of the court directing the amendment was in itself a sufficient amendment, and the finding of the court, “that the court by said order inserted the name of B. Sinsheimer in the complaint,” and the recital of the decree to the same effect, are correct.

(Kittle

v. Bellegarde, 86 Cal. 563.) It would have been more regular to have made the amendment in the complaint, but the error, if any, is immaterial (Code Civ. Proc., sec. 475), and, being merely clerical, may be corrected by the court below at any time.

(Baldwin

v. Bornheimer, 48 Cal. 433.) The case of

McKinlay

v.

Tuttle,