No. 4283 | Cal. | Jul 1, 1875
The motion by Lewis to vacate and set aside the writ of restitution is founded on the assumption that not having been named as a defendant in the action his voluntary appearance was unauthorized and void, and that the judgment against him is a nullity, notwithstanding his appearance. McKinlay v. Tuttle (42 Cal. 571) is relied upon as supporting this proposition. But that was a direct appeal from the judgment, while in this case it is sought to attack the judgment collaterally. In his answer, Lewis admits that he was served with the summons as one of the defendants sued by a fictitious name, and does not deny the fact of service in his affidavit used on the hearing of the motion. The only ground on which it is claimed that the judgment is void is that he was not named as a defendant in the original or any amended complaint. It was, doubtless, irregular, as in McKinlay v. Tuttle, to enter a judgment against him without amending the complaint and inserting his name as a defendant, and on appeal the judgment would have been reversed for error. But we are not prepared to hold that the judgment was a nullity for want of a jurisdiction to render it. When Lewis was served as a defendant sued by a fictitious name, the court acquired jurisdiction over his person, and it then became the duty of the plaintiff to amend the complaint by inserting the true name. The omission to do this rendered the judgment irregular; but it was not void.
Order affirmed.
Mr. Chief Justice Wallace did not express an opinion.