Bachman v. Cathry

Citations

• 113 Cal. 498
• 45 P. 814
• 1896 Cal. LEXIS 818

Syllabus

<p>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.</p> <p>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.</p> <p>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.</p>