113 Cal. 498 | Cal. | 1896
Appeal from an order changing the place of trial.
The action was brought in Kern county against Frank Cathry, John Doe, and Richard Roe, and the plaintiff alleges in the complaint that he “ is ignorant of the true names of the defendants sued herein under the fictitious names of John Doe and Richard Roe, and asks that when their true names are discovered this complaint may be amended by inserting the same in lieu of said fictitious names.” The summons was served upon the defendant Cathry in the county of Inyo, February 28, 1895, and returned to the clerk’s office on the 11th of March. March 9th Cathry gave notice of a motion to change the place of trial to the county of Inyo, upon the ground that at the commencement of the action all
Section 474 of the Code of Civil Procedure provides:
The affidavit of Cathry that, at the commencement of the action he and his codefendants were residents of the county of Inyo, entitled him to have his motion granted, unless this fact should be overcome by affidavits on the part of the plaintiff. The plaintiff did not make any affidavit on the motion, and no showing was made by him or on his behalf that Brun was the individual intended by the fictitious name of John Doe.
The attorney for the plaintiff, whose affidavit was read upon the hearing of the motion, did not profess to have any personal knowledge on the subject, or any information other than that which he obtained from the affidavit of service, and this latter affidavit merely states that Brun was a resident of Kern county at the date of the service. That portion of the affidavit in which it is stated that “ Brun is one of the defendants in the action, sued under the name of John Doe,” is only hearsay, and was not entitled to be considered. A process-
The code allows a defendant to be sued by a fictitious name only when the plaintiff is ignorant of his name, and, although the individual who is served under such fictitious name may be substituted as a defendant, until such substitution is made the rights of other parties to the action will not be affected by such service, or by his appearance in the suit. The plaintiff made no affidavit upon the subject, and there was nothing before the court from which it could find that either of the defendants was a resident of Kern county. The complaint charged all the defendants with the same act of taking and converting the property of the plaintiff, and the court could assume, in the absence of any other-showing, that the defendant who was served would know his associates.
If the affidavits, which were filed under leave of the court, after the motion had been submitted, had contained matter material to the motion, it would have been an abuse of discretion in the court not to consider them, but, as their purport was merely to show the residence of Brun, they were immaterial, in the absence of any showing that Brun was the individual whom the plaintiff intended to make a defendant in the action Their statement to that effect was merely hearsay.
The order is affirmed.
Garoutte, J., and Van Fleet, J., concurred.