Gannon v. Myars ( 1886 )

Bartlett, J.—The

complaint, which is entitled as above, sets out a good cause of action against the defendant. A special notice of appearance has been put in for Alexander M. Cristalar, stating that he is the person upon whom the summons was served. Alexander M¡ Cristalar has also interposed a demurrer upon the ground that the complaint does not state facts sufficient to constitute a cause of action .against him. In this he is quite correct, unless he is identical with the defendant Myars. The plaintiff now moves for judgment on the demurrer as frivolous.

Section 451 of the Code of Civil Procedure permits a plaintiff who is ignorant of the name or part of the name of a defendant to designate that defendant by a fictitious name or by as much of his name as is known. The plaintiff here professes to know that the surname of the defendant is Myars, and his suit must stand or fall by the correctness of his position in that respect; for a verdict or a judgment will not cure the defect unless the correct name of the party has once been rightly stated. Code Civ Pro., § 121, sfibd. 9.

In case of a default in pleading the only judgment that could be_ entered would be against Myars, and no execution on that judgment could run against the Alex. M. Cristalar, who has specially appeared and demurred herein, unless his real name be Myars. If there has been a misnomer the defendant’s remedy is by answer ; under • the circumstances, the demurrer by Cristalar presents no defense.

There must be judgment for the plaintiff, with leave to defendant to answer, if so advised, on payment of ten dollars costs of motion.