Summary
In Bachman v. Cathry, 113 Cal. 498 [45 P. 814, 815], defendant moved to change the place of trial on the ground of residence, and upon the hearing of the motion, in addition to the complaint and the affidavits of defendant, there was presented an affidavit by plaintiff denying certain allegations in the affidavits of defendant.
Summary of this case from Mills v. DicksonOpinion
Department One
Appeal from an order of the Superior Court of Kern County changing the place of trial. A. R. Conklin, Judge.
COUNSEL:
T. M. McNamara, for Appellant.
Walter A. Lamar, for Respondent Cathry.
JUDGES: Harrison, J. Garoutte, J., and Van Fleet, J., concurred.
OPINION
HARRISON, Judge
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 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 [45 P. 815] 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.
Section 474 of the Code of Civil Procedure provides: "When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, and such defendant may be designated in any pleading or proceeding by any name, and, when his true name is discovered, the pleading or proceeding must be amended accordingly." In McKinlay v. Tuttle , 42 Cal. 570, it was held that, unless such amendment is made, a judgment against individuals served under fictitious names cannot be sustained; that, though they appear and answer the complaint, their answer does not waive an amendment of the complaint describing them by their true names. In Rosencrantz v. Rogers , 40 Cal. 489, service had been made upon persons claimed to be sued under fictitious names, and an order setting aside the service was affirmed, upon the ground, among others, that the plaintiff did not, in response to the motion, offer to have their names inserted as defendants. Under the principles of these decisions 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.
The affidavit of Cathry that, at the commencement of the action he and his codefendants were residents of the county of Inyo, entitled him to have his motion granted, unless this fact should be overcome by affidavits on the part of the plaintiff. The plaintiff did not make any affidavit on the motion, and no showing was made by him or on his behalf that Brun was the individual intended by the fictitious name of John Doe.
The attorney for the plaintiff, whose affidavit was read upon the hearing of the motion, did not profess to have any personal knowledge on the subject, or any information other than that which he obtained from the affidavit of service, and this latter affidavit merely states that Brun was a resident of Kern county at the date of the service. That portion of the affidavit in which it is stated that "Brun is one of the defendants in the action, sued under the name of John Doe," is only hearsay, and was not entitled to be considered. A process-server, or an officer, can have no knowledge of the individual intended by the plaintiff under a fictitious name. The further statement of the plaintiff's attorney that all of the defendants are not residents of the county of Inyo was immaterial, unless one or more of them were residents of the county of Kern.
The code allows a defendant to be sued by a fictitious name only when the plaintiff is ignorant of his name, and, although the individual who is served under such fictitious name may be substituted as a defendant, until such substitution is made the rights of other parties to the action will not be affected by such service, or by his appearance in the suit. The plaintiff made no affidavit upon the subject, and there was nothing before the court from which it could find that either of the defendants was a resident of Kern county. The complaint charged all the defendants with the same act of taking and converting the property of the plaintiff, and the court could assume, in the absence of any other showing, that the defendant who was served would know his associates.
If the affidavits, which were filed under leave of the court, after the motion had been submitted, had contained matter material to the motion, it would have been an abuse of discretion in the court not to consider them, but, as their purport was merely to show the residence of Brun, they were immaterial, in the absence of any showing that Brun was the individual whom the plaintiff intended to make a defendant in the action Their statement to that effect was merely hearsay.
The order is affirmed.