Irving v. Carpentier

Thornton, J. This is an action to quiet title to land in Alameda County. The complaint contains this averment: “ That H. W. Carpentier, J. P. Jones, Charles Crocker, Leland Stanford, and others of whose names plaintiff is ignorant, and whom he designates by the names of Tom Jones, Mary Jones, John Smith, and John Brown, and whose names when discovered he asks leave to insert in an amendment to this complaint, all of whom are in possession of the said land, and claim an interest therein adverse to this plaintiff.”

The summons in the action was on the 8th of February, 1883, served on the Pacific Improvement Company, sued as Tom Jones.

On the 14th of February, 1883, the above-named company, by its attorney, H. S. Brown, gave notice to plaintiff that it would move the court on the 19th of February, 1883, to set aside the service of summons, and to dismiss [24]this action as to the company, on the ground that the plaintiff had notice at the time of the commencement of the action that the company claimed an interest in the premises in controversy adverse to him. The motion was subsequently made, and on the hearing there was filed on behalf of the company an affidavit of Frank S. Douty, its treasurer and assistant secretary, to the effect that plaintiff at the time of the commencement of the action (which was on the ninth day of February, 1882), and ever since the fourth day of February, 1881, had legal notice that this company was one of the parties who claimed an interest in the lands described in plaintiff’s complaint in this, that on the fourth day of February, 1881, a deed from Charles Crocker to the company for the undivided two-thirds part of the lands was recorded in the office of the county recorder of the county of Alameda in Liber 214 of Deeds, page 359, as will fully appear by referring to said records, and had plaintiff exercised any care and diligence whatsoever in examining or searching the records of said county, he could and would have seen that the company claimed and held in fee-simple an undivided interest in said lands.

The affidavit of plaintiff was also read on the hearing, in which he stated that at the time of bringing this suit he did not know that the Pacific Improvement Company was the name of the defendant that claimed an interest in the property; that he knew some one did, but did not know the name, and therefore sued by a fictitious name; that in January last (1883) he first learned from Harvey S. Brown, who appeared as counsel in this case, that the Western Development Company was the true name of the defendant; that when he found out from the records what the true name of the defendant was, that was the first time he knew it; that no person was in possession when the action was brought; that the plaintiff knew of that, and that no one was in the open and visible occupation of the land.