No. 5385 | Neb. | Jan 16, 1894
On the 23d day of December, 1886, Lawrence C. Enewold brought suit on an account in the county court of Douglas county against one Olsen. In the petition filed Olsen was described as “ F. Olsen, full name unknown.” The sheriff’s return of the summons in the case was as follows: “On December 23, 1886, I received this writ, ■and on December 23, 1886, I served by leaving a certified copy of this writ and indorsements thereon at the usual place of residence of the within named F. Olsen, the defendant, in Douglas county, Nebraska.” The further proceedings of the county court in the case were as follows: “January 4, 1887, on the call of the docket, this day, it appearing to the court that the defendant F. Olsen, has been served with a summons and has failed to appear, plead, answer or demur thereto, and is in default: Now, therefore, on motion of plaintiff’s attorney, it is ordered that default of the defendant be, and the same is hereby entered against him. The same day the case came on for trial to the court, L. C. Enewold, the plaintiff, was duly sworn and examined in his own behalf. After hearing the evidence, .the court finds that said defendant, F. Olsen, real full name unknown, is indebted to the plaintiff in the sum of $133.89. It is therefore considered, adjudged,” etc. February 11, 1892, Lawrence C. Enewold filed in said county court a petition against Ferdinand Olsen praying for a revivor of said judgment. On said day the county court made an order that said judgment be revived unless Ferdinand Olsen should show cause why it should not be. On February 18, 1892, a copy of this order was duly served on Ferdinand Olsen, and he appeared in the county court and objected to a revival of said judgment on the ground that the same was void, as he, Olsen, was named in the summons “F. Olsen, full name unknown;” that the court could only acquire jurisdiction over him by the per
Section 69 of the Code of Civil Procedure provides: “The service [of summons] shall be by delivering a copy of the summons to the defendant personally, or by leaving one at his usual place of residence at any time before the return day.” Section 148 of the Code of Civil Procedure provides: “When the plaintiff shall be ignorant of the name of the defendant, such defendant may be designated in any pleading or proceeding by any name and description, and when his true name is discovered, the pleading or proceeding may be amended accordingly. The plaintiff in such case must state, in the verification of his petition, that he could not discover the true name, and the summons mxxst contaixx the words ‘real name unknown,’ and a copy thereof must be served personally upon the defendant.” The law requires that a defendant shall be sued by his correct name, if known to the plaintiff suing him; and section 69 defines what shall be sufficient notice to him when thus sued. But cases may, and do, arise where the correct name of a party about to be sued is unknown to the plaintiff desiring to bring the action. To meet such cases section 148 was enacted, by which the pai'ty sued may be designated by any name and description; but to authorize the suing of a pai’ty by a name and description, i. e., by any other than lxis correct name, the statute not only requires that the plaintiff should be ignorant of the correct name of the party, against whom he desires the law’s process under a pseudonym, but to make oath that he has not been able to discover the party’s true name. These prerequisites
The inquiries here are: What, within the meaning of said section 148, constitutes a person’s true name; and if Enewold was ignorant that Olsen’s given name was “ Ferdinand,” was Enewold then ignorant of Olsen’s true name, within the meaning of said section 148? In Schofield v. Jennings, 68 Ind., 233, it is said: “By the common law, since the time of William the Norman, a full name consists of one Christian or given name, and one surname, or patronymic. The two, using the Christian name first and the surname last, constitute the legal name of the person.” It follows, then, that a person’s legal name is made'up of his first or given name and his surname, or patronymic; and, for one to be ignorant of either is to be ignorant of such person’s name within the meaning of said section 148;
In this proceeding, one to revive a dormant judgment, Olsen is called on to show cause why the judgment should not be revived, and he alleges as a reason why this should not be done that such judgment is void, and that this appears from the record itself. Can Olsen be heard to make this objection in this proceeding? We think he can. In Wright v. Sweet, 10 Neb., 190" court="Neb." date_filed="1880-01-15" href="https://app.midpage.ai/document/wright-v-sweet-6642996?utm_source=webapp" opinion_id="6642996">10 Neb., 190, it is said: “Upon proceedings to revive a judgment which has become dormant, * * * no objections will be heard which seek to go behind the original judgment.” But this case does not decide, nor was it intended to decide, that a person against whom it was sought to revive a judgment might not make the objection that such judgment was void; that is to say, that there was no such judgment; and that such fact appeared on the face of the record. Suppose that Olsen had disregarded the notice served on him to show cause why this judgment should not be revived. The conditional
Affirmed.