Bachman v. Cathry

California Supreme Court Jul 24, 1896 No. L. A. No. 78Published

Before: Harrison

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Holding. The court held that a defendant sued under a fictitious name is not a party to the action until the complaint is formally amended to substitute their true name, and therefore their residence cannot be considered in a motion for change of venue.

Issues

Whether a defendant sued under a fictitious name must be formally substituted in the complaint before their residence can be considered for venue purposes.
Whether the court erred in granting a motion to change the place of trial based on the residence of the named defendants.

Disposition. affirmed

Quotations verified verbatim against the opinion

“unless such amendment is made, a judgment against individuals served under fictitious names cannot be sustained”

“the court, in considering the action of Cathry, could not consider the residence of Brun until after his name had been inserted in the complaint as one of the defendants.”

“until such substitution is made the rights of other parties to the action will not be affected by such service”

Synopsis

Oblanos of Place of Trial—Fictitious Names of Defendants—Service of Alias Summons upon Resident after Demand—Failure to Amend—Hearsay Affidavits.—Where one defendant was sued by ' his true name, and two others by fictitious names, and the original summons was returned served only upon the former, who appeared and demanded a change of the place of trial, on an affidavit stating that he and the other defendants were residents of another county, such demand cannot be defeated by the subsequent return of an alias summons stating that one of the defendants sued by a fictitious name was served by his true name, and that he was a resident of the county in which the action was brought, nor by the hearsay affidavits of third persons to the same effect, in the absence of an amendment of the complaint describing him as a defendant under his true name, substituted for the fictitious name under which he was sued, and in the absence of any affidavit or showing from the plaintiff himself as to the person intended to be sued by such fictitious name.

Id.—When Fictitious Name may be Used—Necessity fob Substitution.-—A defendant can only be sued by a fictitious name when the plaintiff is ignorant of his name; and until substitution is made of the true name of a defendant served with summons under a fictitious name, the rights of other parties to the action will not be affected by such service nor by his appearance in the suit.

Id.—Use-of Fictitious Names—Charge of Conversion—Presumption as to Defendant’s Knowledge of Associates.—Where a defendant sued by his true name, and other codefendants sued by fictitious names are charged jointly with the conversion of plaintiff’s property, the court, in the absence of any counter-showing from the plaintiff, may presume that the defendant sued, and served by his true name, knows who were his associates and the place of their residence.

Harrison, J. Appeal from an order changing the place of trial.

The action was brought in Kern county against Frank Cathry, John Doe, and Richard Roe, and the plaintiff alleges in the complaint that he “ is ignorant of the true names of the defendants sued herein under the fictitious names of John Doe and Richard Roe, and asks that when their true names are discovered this complaint may be amended by inserting the same in lieu of said fictitious names.” The summons was served upon the defendant Cathry in the county of Inyo, February 28, 1895, and returned to the clerk’s office on the 11th of March. March 9th Cathry gave notice of a motion to change the place of trial to the county of Inyo, upon the ground that at the commencement of the action all [500]of the defendants named in the complaint were residents of said Inyo county, accompanying this notice with his affidavit that at the commencement of the action, and for more than twelve months prior thereto, he and each of his codefendants were bona fide residents of the county of Inyo. After this notice was given, an alias summons was issued upon the complaint, and on the 13th of March, 1895, was returned with an affidavit indorsed thereon that the same was served by the affiant on the 12th of March, on “ Jean Brun, a then resident of the said county of Kern, and one of the defendants in the above-entitled action, sued therein under the name of John Doe.” March 13th a demurrer to the complaint was filed in the action on behalf of said Brun. Upon the hearing of the motion, in addition to the complaint and the foregoing affidavits, there was presented an affidavit by the attorney for the plaintiff, that “ it appears from the affidavit of service of summons” that the defendant sued as John Doe is a resident of Kern county, and that “ all the defendants in said cause are not residents of the county of Inyo.” The motion was heard and submitted April 1st, and on the 3d of April counsel for plaintiff requested leave to file affidavits of S. Heineman and Albert Lederer, to which “ the court stated that he could file anything he wanted to, but that the motion had been heard and submitted, and thereupon said affidavits were filed in said cause, but not submitted to or considered by the court in determining said motion.” In each of these affidavits it is stated that “ Jean Brun, one of the defendants in the above-entitled action, sued as John Doe, has been for more than six months continuously last past a bona fide resident of the county of Kern.” No amendment of the complaint was made, nor was Jean Brun made a defendant by having his name substituted in the complaint for that of John Doe. April 8th the court made an order granting the motion, from which this appeal is taken.

Bachman v. Cathry

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