Wetenhall v. Chas. S. Mabrey Constr. Co.

WASTE, C. J.

— This appeal by the defendants from a judgment entered on the pleadings presents the question whether or not an individual doing business as such, and using his own name and initials, followed by the word “Company,” is required to file with the clerk of the county and publish the certificate required by sections 2466 and 2468 of the Civil Code. On petition to this court, after decision and judgment in the District Court of Appeal, it was contended that the decisions on the subject were not uniform, in that an opposite vieiv to that expressed by the decision in this case had been reached by the District .Court of Appeal of another district in

Collection Service Cor%>.

v.

Conlin,

98 Cal. App. 686 [277 Pac.

[294]

749], in which case a hearing in this court had not been sought.

Our examination discloses that the facts of the two cases are essentially different. In the Conlin case it was alleged and found that the assignor of the plaintiff “was doing business under the registered

fictitious

name of,” etc. (italics ours), which distinguishes the case from the one at bar. We are, therefore, content to adopt, as the opinion and decision of this court, the opinion of the District Court of Appeal, prepared by Mr. Justice

pro tern.

H. L. Preston, viz.:

“This is an action by plaintiff against the contractor as principal, and the bonding company, above named, as surety, for materials furnished to the contractor and used in the construction of a building in San Bruno, California.

“Appellants rely upon two special defenses which are set forth in their answer. First, ‘That plaintiff has failed to comply with the provisions of sections 2466 to 2468, inclusive, of the Civil Code of the State of California, and for that reason said action is barred. ’ Paragraph I of the complaint is as follows: ‘That plaintiff now is and was at all times herein mentioned doing business under the name and style of W. S. Wetenhall Company, with his office and principal place of business in the city and county of San Francisco.’ Section 2466 of the Civil Code provides: ‘ . . . every