Burns v. Downs

STURTEVANT, J. From an order setting aside a default of the defendant the plaintiff has. appealed. He makes one point which is that he sued an association and also the members thereof and that his judgment was regular and it was error to set it aside. The defendant controverts the point. The record is, in brief, as follows:

The title of the complaint was: “Robert G. Burns, Plaintiff, v. Bertram W. Downs, also known as B. W. Downs; B. W. Downs and Paul L. Van Brunt, doing business as Westeraft Laboratories; B. W. Downs doing business as Western Aircraft Manufacturing Company and John G. Canfield, John Doe, Jane Doe, One Doe, Black & White, a co-partnership, Blue Company, a corporation, Defendants.” Paragraphs I and II thereof were as follows:

“That B. W. Downs and Paul Van Brunt are doing business under the fictitious name and style of Westeraft Laboratories, and that such fictitious name has been registered with the county clerk of Los Angeles county as required by law; that B. W. Downs is doing business under the fictitious name of Western Aircraft Manufacturing Company, that such fictitious name has been registered with the county clerk of Los Angeles county as required by law.

“That the defendants, John Doe, Jane Doe, One Doe, as individuals and Black and White, a co-partnership, doing business under the fictitious firm name and style of Black Company, and Blue Company, a corporation, are sued herein under the fictitious names because their true names are unknown to the plaintiff and that when the true names are ascertained plaintiff asks leave of court to substitute such true names for the fictitious names. ’ ’

With the complaint he served a summons which designated the defendants in the same words as recited in the title of his complaint. The complaint and summons were served in Los Angeles on April 22, 1938, on “Bertram W. Downs, doing-business as Westeraft Laboratories.” On the same date the plaintiff delivered to “Bertram W. Downs, also known as B. W. Downs” a copy of the complaint and summons. On May 3, 1938, Bertram W. Downs filed a demurrer. On May 25, 1938, the plaintiff filed a request that the default of “B. W. Downs doing business as Westeraft Laboratories” [324]be entered. On June 2, 1938, the trial judge caused to be entered a default judgment against B. W. Downs and Paul L. Van Brunt doing business as Westcraft Laboratories. ’ ’ On June 5, 1938, B. W. Downs served notice that on June 8, 1938, he would move to set aside the default judgment entered June 2, 1938. In his notice he recited that his- motion would be based “ . . . upon this notice and the records, papers, and' files in this ease, including the affidavits of Frank D. Gatlin filed herewith.” Said affidavits recite the facts we have above set forth. The plaintiff filed the affidavit of Frank Freytag which does not controvert any one of the facts above set forth. He also filed the affidavit of Fred C. Glawe which does not controvert any one of said facts. He also filed the affidavit of Charles J. Wendland, his attorney, which does not controvert any one of said facts. However it recites, “That at no time was an appearance ever made in the action by Westcraft Laboratories, defendant herein. On June 8,1938, the plaintiff dismissed the action as to B. W. Downs. On June 9, 1938, the trial court granted the motion of Bertram W. Downs to set aside the default judgment. It is from that order that this appeal was taken.