Morrison County Lumber Co. v. Duclos ( 1915 )

Holt, J.

In an action to foreclose a mechanic’s lien a defendant was named P. O. Duelos. In the complaint filed the same name was used, and it was alleged that plaintiff made the contract for the improvement with the defendant P. O. Duelos, and that he was the owner of the premises upon which the lien was sought. The attorney who prepared the summons, Us pendens and complaint, personally served the summons by handing and delivering a copy thereof to Odilon Duelos, also known as O. Duelos. Odilon Duelos had a son whose name was P. O. Duelos. No attempt was made to serve upon the son. The attorney who made the service knew both father and son. After the time expired within which an action could be commenced to foreclose the lien, plaintiff moved to amend the summons and all the papers in the action, by striking out the initials in the name of defendant Duelos wherever it occurs, and inserting in lieu thereof the Christian name Odilon, on the ground that through inadvertence and mistake of the attorney preparing the papers in the action the 'defendant had been misnamed. At the same time Odilon Duelos appeared specially and moved to set aside the service of the summons. The court granted plaintiff’s motion and denied that of Odilon Duelos who appeals.

The contention is that, since there was a person of the identical name to whom the summons was directed, the amendment of the name was substituting another defendant for the one named. And further, it is said, the court has no power to amend the summons so as to make one a defendant, when the summons is not directed to him as required by statute, but is directed to another person in such other person’s correct name. We cannot sustain appellant. While a summons is not strictly process and is not in terms specified in sections 7783 and 7786, G-. S. 1913, it has nevertheless been held to be one of the documents in an action which in virtue of said sections may be amended in the sound discretion of the court. Lockway v. Modern Woodmen of America, 116 Minn. 115, 133 N. W. 398, Ann. Cas. 1913A, 555. The summons was personally served upon Odilon Duelos by the one who issued it and -who drew the complaint. He makes oath that the one so served was well known to him and was the person intended as defendant. He was confused as to the first names of the father and son which explains the mistake in the defendant’s first name. Upon the authority of Casper v. Klippen, 61 Minn. 353, 63 N. W. 737, 52 Am. St. 604, a mistake in the first name of a defendant may be corrected on motion, especially before judgment, and where, as here, opportunity is given to answer. Had defendant been the only person by the name of Duelos no claim could well have been made that the trial court did not properly exercise his discretion. Because there happen to be two or more of that name ought not to preclude relief to plaintiff. Every defense this defendant had when the action was begun is available to him now. In Fassy v. Jacobs, 71 Misc. 145, 127 N. Y. Supp. 1062, cited by defendant, where a motion was made at the trial to amend the name of the defendant Samuel Jacobs to Morris Jacobs, the court uses this language which squarely.supports the ruling of the learned trial court: “If Morris Jaeobs had ever been summoned into this action by the name of Samuel, or by some other than his true name, we are of opinion that the order granting the amendment would have been within the power and discretion of the court. Code Civ. Proe. § 723.” The citation in Sleeper v. Killion, 166 Iowa, 205, 147 N. W. 314, was properly served upon the parents of the minors, but, since the parents were the only defendants named therein, it was held the court lacked jurisdiction to enter judgment against the minors who were not named. The case is not in point.

Order affirmed.