Motion to recall mandate denied September 25, 1928. ON MOTION TO RECALL MANDATE. (270 P. 778.)
The plaintiffs have filed with this court a motion whose purpose is to amend the title of this cause by striking out of the name of the defendant the words "Dock Commission of"; thereupon the name of the defendant will appear as "The
City of Portland, a Municipal Corporation," and it will become the judgment debtor. The city earnestly resists this motion. The plaintiffs and the city have filed with us several affidavits setting forth information in regard to the matter thus pending before us. From these affidavits and from the charter of the city we have gathered the following as the pertinent facts. There is no corporate entity entitled the "Dock Commission of the City of Portland." The Dock Commission is a department of the city created for the purpose, among others, of operating the public docks of that city. After this court affirmed the judgment of the Circuit Court, the plaintiffs sought collection of their judgment from the city but it declined payment, because the judgment did not name it as the debtor. The city is protected by a policy of casualty insurance in the sum of $7,500; the insurance company also declined to make payment because the beneficiary named in its policy was not named in the judgment as the debtor. Thereupon, the plaintiffs filed this motion. Several days before the service of the process in this action the attorneys for the plaintiffs, Messrs. Lord Moulton, represented another client, who had sustained an injury while in the city's employ upon its public wharves. In that action the name of the defendant appeared as "City of Portland, a municipal corporation, Dock Commission, and W.J. Jones Son, a corporation." Shortly after service of the process in that case Mr. Frank S. Grant, attorney for the city, sent a letter to Messrs. Lord Moulton, in which he wrote: "This matter will be handled by W.P. LaRoche, attorney for the commission of Public Docks. Hereafter please recognize him in the case
as this office does not handle the legal work of The Commission of Public Docks." Five days later the complaint and summons in our present action were served. In it, as we have observed before, The Commission of Public Docks of the City of Portland was named as the defendant. While Section 55, Or. L., provides that in actions against a city the summons shall be served upon the clerk of the city, service was made upon the secretary of the Dock Commission. The charter ordinances of the city provide that the city attorney shall have control over all actions in which the city is interested; the city attorney had no knowledge of this action until the plaintiffs sought payment of their judgment; the defense was handled by Mr. W.P. LaRoche, special counsel for the Dock Commission, and by Mr. Frank Lonergan, who represented an insurance company which had written the casualty insurance which we have previously mentioned. Had the process been served upon the auditor of the city, that official would have transmitted the complaint and summons to the city attorney's office, and the latter would have handed them to Mr. LaRoche. Mr. Lord, in an affidavit, avers that when he prepared the complaint in this case he relied upon Mr. Grant's letter, and that he made the Dock Commission defendant, and directed service upon the secretary of that body, so as to clearly indicate the department sued, and avoid the necessity of transmitting the process from the auditor to the city attorney and from the latter to Mr. LaRoche.
The city contends that if we permit the plaintiffs to make the alteration which they request, it would thereby be introduced as the judgment debtor
although it has never had an opportunity to defend itself against the plaintiffs' demands. The motion and its resistance by the city, therefore, requires us to determine whether service upon the secretary of the Dock Commission followed by an appearance of the Commission's attorney in association with the attorney for the insurance company amounted to an appearance by the city. We should carry in mind, however, the contents of Mr. Grant's letter, and the fact that the city attorney's office was entirely ignorant of this action. As is held in Foshier v. Narver,24 Or. 441 (34 P. 21, 41 Am. St. Rep. 874), it is not the name that is sued, but the person to whom it is applied, and the right party may be served by a wrong name; "service upon a party by a wrong name is a good service and gives the court jurisdiction." But, in order to accomplish the result of giving the court jurisdiction over the individual, either by his right or his wrong name, service must be made upon him, or he must appear and submit himself to the jurisdiction of the court. We believe that neither of these events took place. Section 55, Or. L., directs how service of process should be made. If the plaintiffs rely upon service to yield to the court jurisdiction over the city, it is necessary that they should show that they have complied with the statute; nothing else will suffice: Bowers, Process and Service, § 352. Clearly their service failed to meet the statutory requirements. Since the charter of the city conferred upon the city attorney sole authority over the city's litigation, no one other than the city attorney or some other attorney authorized by him could through an appearance confer jurisdiction upon the court. But the plaintiffs argue that
Mr. Grant's letter constituted an authorization for Mr. LaRoche to appear in this case, and that his subsequent appearance conferred jurisdiction upon the court as effectually as if the city attorney had done so. This contention requires a construction of the letter. It first refers by name to a definite case; it then states that Mr. LaRoche will handle that case. So far, there is nothing in the letter which would authorize Mr. LaRoche to appear in the present case. The above is followed by the statement "this office does not handle the legal work of The Commission of Public Docks." The charter of the city provides: "The City Attorney must attend to, and shall, subject to the direction of the Council have control of all actions, suits or proceedings in which the city is legally interested * *." Since the plaintiff's action was in fact litigation against the city, the city attorney could not divest himself completely of authority over it and other actions arising out of operations of the public docks and wharves; McQuillin, Municipal Corp. (2 ed.), §§ 394 and 519; Clough v. Hart, 8 Kan. 487.
The statement by Mr. Grant that if the complaint and summons had been transmitted to him by the auditor he would have handed them to Mr. LaRoche indicated a means whereby the city attorney retained to himself authority over this class of litigation. We are of the opinion that the service of process failed to supply the court with jurisdiction over the city, and that the appearance by Mr. LaRoche and the attorney for the casualty insurance company was not an appearance by the city.
The plaintiffs call to our attention the fact that Mr. Hegardt, secretary of the Dock Commission,
verified the answer, and contend that he was an officer of the city of the type mentioned in Section 360, Or. L. Even if we should agree with the plaintiffs in this contention, we do not believe that it would assist them materially in their difficulty, because the charter of the city placed control over the city's litigation in the office of the city attorney and not in the office of the secretary of the Dock Commission. Thus while Mr. Hegardt's verification might be sufficient to constitute the document a pleading, he still lacked authority to determine the city's course in litigation. It is not necessary for us to determine whether those portions of the charter which create the Dock Commission, and yield to it authority, empower it to employ an attorney; because no attorney employed by the commission could usurp the authority granted by the charter exclusively to the city attorney to determine the city's participation in litigation.
The plaintiffs have cited considerable case-law in an endeavor to persuade the court in their favor. We have carefully studied all of the cases cited, because we recognize that the matter before us is a serious and important one. The death of the father and husband which occasioned this litigation has been recognized by this court, as well as the court below, as the negligent act of the employees of the Dock Commission; to lose the fruits of the victory will be a severe misfortune to the plaintiffs. Upon the other hand, to fabricate out of the facts before us case-law, whereby it will be possible to inject into litigation a party as judgment debtor after the action has been tried, appealed and the judgment affirmed, would be fraught with dangerous consequences. From the
cases relied upon by the plaintiffs we have derived but little help. In Vaccarini v. City of New York, 54 Misc. Rep. 600
(104 N.Y. Supp. 928), the plaintiff sued the City of New York but failed to entitle the city correctly. However, since the "City of New York" appeared by its "counsel to the corporation" and conducted the trial without objection, the court held that it was too late upon appeal to raise this objection. In Corporation ofGeorgetown v. Beatty, 1 Cranch 234 (Fed. Cas. No. 5344), the plaintiff was allowed to amend his writ and declaration so as to correctly entitle the defendant's name. Section 104, Or. L., grants authority to make a similar amendment in this state. InFolkerts v. Powers, 42 Mich. 283 (3 N.W. 857), the court construed and applied a tax statute. In concluding its decision it observed: "The School District is a necessary party and should have been brought in. But this suit has been pending nearly eight years, and the contest is one where there is no room for doubt in regard to the result on the merits. We know that the presence of the district as a party could have made no difference. The proceeding assailed could not be successfully defended by any party." The court remanded the suit to the court below with directions to add the school district as a party and enter a decree. Nothing in the decision indicates whether the school district resisted this disposition of the matter; but, it will be observed that the court carefully pointed out, that "the presence of the district as a party could have made no difference." InCity of Decatur v. Eady, 75 Ind. App. 688 (105 N.E. 590), the record was uncertain whether Rebecca Eady brought the action as executrix or as administratrix;
she sought leave in the appellate court to amend her assignments of error to show she sued in the latter capacity and not in the former. The court examined the record and found it warranted the conclusion that the action had been brought as administratrix; she also sought leave to amend the name of the defendant as it appeared in the assignments of error so that it would appear "The City of Decatur, Indiana, a Municipal Corporation," in lieu of "The City of Decatur." It was held the amendment was unnecessary; but leave was nevertheless granted. In Fink v. City ofClarendon (Tex. Civ. App), 282 S.W. 912, the suit was instituted by the city under the name of the "City of Clarendon"; but it was incorporated as the "Town of Clarendon." Since there was no question but what the municipality was the party that had conducted the litigation the court disposed of this irregularity in the title of the cause by remarking: "We suggest that this discrepancy be corrected in future proceedings." In Eubank v.City of Edina, 88 Mo. 650, we find nothing that bears upon the matter before us; that portion of the decision which deals with the corporate existence of a municipality merely concerns what proof is sufficient to establish its incorporation. Practically the same observations apply to Commercial Union Assur. Co. v.Schumaker, 71 Ind. App. 525 (119 N.E. 532.) In Mecca Fire Ins.Co. v. First State Bank (Tex.Civ.App.), 135 S.W. 1083, the plaintiff's original petition named the defendant incorrectly; an amended petition corrected this error. The question then arose whether the filing of the original petition interrupted the running of the period of limitation, or whether that was postponed until the amended petition was filed.
The court very properly attributed that result to the filing of the first petition, because it was not the name but the corporation that was sued. In Wells Fargo Co. v. Bilkiss
(Tex. Civ. App), 136 S.W. 798, the court held that since "there was no question that appellant was the party sought to be charged" and since "it came in and pleaded to a suit against ``Wells Fargo Co.,'" the judgment of the court below should be corrected so that it will bear the appellant's true name, "Wells Fargo Co. Express." In Auglaise Box Board Co. v. Hinton,100 Ohio St. 505 (126 N.E. 881), one Bessie Hinton as plaintiff sued a concern entitled the Bloomer Co. on account of a personal injury. At that time the corporate existence of the Bloomer Co. had not been formally dissolved, but it was in fact insolvent and had ceased to exercise its corporate functions. All of its properties were in the possession of the Strawboard Co., a corporation which operated them for its exclusive benefit. The latter company secured casualty insurance in its name to protect itself in the operation of the plant. The plaintiff averred in her complaint that she was uncertain as to the arrangement between the companies and attached interrogatories for answer by the Bloomer Co. The Strawboard Co. defended by its attorney in the name of the Bloomer Company and persuaded the court to sustain a demurrer to the interrogatories. Upon trial the plaintiff secured judgment against the Bloomer Company. In the present suit, wherein a successor of the Strawboard Company is the plaintiff and seeks to foreclose a mortgage executed by the Bloomer Company to the Strawboard Company to secure some of the former's notes, all of which have been indorsed and transferred to the
aforementioned successor to the Strawboard Company, the court dealt with the judgment obtained by Bessie Hinton against the Bloomer Company as though it was a judgment against the Strawboard Company. Its reasons were that the Strawboard Company defended the action; it was in complete control of the plant, and operated it for its exclusive benefit. Under these circumstances the court concluded that the Bloomer Company was but another name for the Strawboard Company, and that it would be warranted in disregarding the corporate entity theory, and in dealing with the party who was really responsible. Thus the court concluded that since the Strawboard Company was the individual which had defended the Hinton claim it had had its day in court. The case of Marquette Ry. Co. v. Ashley, 221 Mich. 104 (190 N.W. 642), was disposed of by the employment of principles of law analogous to those applied in Foshier v. Narver, supra. In SouthernKan. Ry. Co. v. Brown, 44 Kan. 681 (24 P. 1100), the court corrected an error of the clerk in designating the defendant in the judgment. There was no question involved in the case as to the identity of the defendant, and the error was patent.
This disposes of all the cases suggested by the plaintiffs. In all of them, with one exception, it was evident that the party from whom payment of the judgment was sought had actually defended the action; no one denied this. The one possible exception was the Ohio case; but, there the court found from the evidence, as presented in the lower court upon a trial, pursuant to proper issues developed in the pleadings, that the party from whose property payment of the judgment was sought was the party who
had actually defended the action although it did so under the name of the Bloomer Company, instead of its true name the Strawboard Co.
The following cases cited by the city are adverse to the contentions of the plaintiffs: Georgia Motor Sales Co. v.Wade, 37 Ga. App. 24 (138 S.E. 797); Thompson v. AmericanMortgage Co., 122 Ga. 39 (49 S.E. 751); Chapman v. WesternIrr. Co., 75 Kan. 765 (90 P. 284).
We conclude that the service of process failed to supply the court with jurisdiction over the city, and that the appearance by Mr. LaRoche and the insurance company's attorney was not the appearance of the City of Portland. The plaintiffs argue, however, that the broad powers conferred by Section 107, Or. L., enables this court to disregard this error. Further pressing this argument they contend that Article VII, Section 3c, Oregon Constitution, authorizes the court to write a judgment against the city. Our disposition of the questions of fact are to the effect that the city was not a party to the case previously; it has not had its day in court, and we do not believe that Section 107, Or. L., and the constitutional provision was intended to enable the court to add a party as judgment debtor after the judgment has been entered.
It follows that the motion of the plaintiffs must be denied.
MOTION TO RECALL MANDATE DENIED.