Smith v. Curtis

Burnett, J., after stating the facts, as above, delivered the opinion of the Court—Terry, J., concurring.

No exception having been taken to the order of the Court below, overruling the motion to set aside the judgment, and quash the execution, the action of that Court, in this respect, cannot be reviewed here.

As to the order of the Court permitting the plaintiff to insert the name of James M. Curtis in the place of L. Curtis, without notice to the former, we think the error, if any, was cured by the appearance and answer of the defendant, James M. Curtis, in the Court below. The only object of a summons is to bring a party into Court, and if that object be attained by the appearance and pleading of a party, there can be no injury to him. We cannot perceive, in this case, how the defendant, James M. Curtis, is injured. The Court below has permitted him to answer, and put in issue the facts of the complaint, and to have a trial upon the merits. So far as his substantial rights are concerned, he stands in the same position as he would have done had his name been originally inserted in the complaint. Had the defendant, James M. Curtis, desired to take advantage of the alleged error of the District Court, in changing the parties to the action, he should have appealed directly from the judgment, and not have appeared and answered in the District Court. To sue a single person, and, without notice, substitute the name of another, has been held error by this Court in the case of McNulty v. Mott, 3 Cal. R., 235. Whether this change would be error in a case where two or more persons were sued as partners, or joint debtors, and the name of another person substituted for one of the defendants, without notice to any one, it is not necessary to determine in this case.

If A and B are sued as partners, and A be served, and then the name of B should be stricken out, and C inserted in the place of B, without notice to any party, it may be very questionable [588]whether such proceedings would stand. The defendant A might be very willing that judgment should go against him and B, while he might have the best reason for objecting to a judgment against himself and C, upon the same cause of action. Substituting a new party, without notice to any one, would seem to be at least doubtful.

The appeal is accordingly dismissed, with costs.