Farris v. Merritt , 1883 Cal. LEXIS 376 ( 1883 )

McKee, J.

The court erred in sustaining the demurrers to the amended complaint filed on the 2d of April, 1882.

The demurrers admitted all the material allegations of the complaint. These showed that the plaintiffs were the owners in fee, and entitled to the possession of the demanded premises, and that the defendants were in possession of the same, and wrongfully withheld them from the plaintiffs. The cause of action was, in no respect, different from that stated in the first complaint, which had been filed on the 8th of August, 1881, except that it ran against a party named as a defendant, whose name did not appear in the first complaint, who, it was alleged, was in possession as a tenant of his co-defendant, Merritt. But this new name ivas alleged to be the real name of one of the defendants named in the first complaint by a fictitious name. Being a party named in that complaint by a fictitious name, he was a party to the action from its commencement. (Sacramento v. Spencer, 53 Cal. 737.) It was necessary, however, to amend the complaint by inserting his real name when ascertained, otherwise no judgment could be taken and enforced against him. (Sec. 474, Code Civ. Proc; McKinlay v. Tuttle, 42 Cal. 577; Campbell v. Adams, 50 Cal. 205; Baldwin v. Morgan, 50 Cal. 585.) Such an amendment, however, does not change the original cause of action. Merritt was a proper party defendant. Section 379 of the Code of Civil Procedure provides that a landlord may be made a defendant to an action of ejectment. "Whether the Statute of Limitations had run in favor of either of the demurring defendants at the time of filing the amended complaint was a question which could not be raised by demurrer, unless the complaint contained allegations of all the facts necessary to constitute adverse possession by the defendants, according to the provisions of the sections of the Code which they invoked by their demurrers. Ho such allegations were contained in the complaint; it did allege an ouster on the 20th of December, 1876, and, assuming that the cause of action then accrued, the action was brought within five years at the filing of the first complaint. But while it is a fact that more than five years had run at the time of filing the amended complaint, in which the real name of the defendant Platt was, for the first time inserted, yet the right of the plaintiffs as alleged owners in fee of the demanded premises was not forfeited by the mere lapse of time. They could only be deprived of their title or barred of their action by proof of an adverse possession by the defendants, according to the requisites and requirements of the Statute of Limitations, upon which they relied; and the burden of the allegata et probata of such a statutory right was upon them. Such is the case of Lawrence v. Ballou, 50 Cal. 258, referred to by respondents’ counsel.

Judgment and order reversed, and cause remanded with direction to overrule the demurrers, and allow the defendants to answer.

Ross, J., and McKinstry, J., concurred.