Galliano v. Kilfoy, 94 Cal. 86

Galliano v. Kilfoy

94 Cal. 86 | Cal. | 1892

Garoutte, J.

This was an action to foreclose two certain mortgages upon real property. A judgment by default was entered against all the defendants, from which judgment Rosa Kilfoy appeals. Rending the action a supplemental complaint was filed, asking judgment under certain covenants contained in the mortgages for moneys paid out for the insurance of the property. Respondent gave appellant written notice, to which was attached a copy of the supplemental complaint, that upon a certain day he would ask leave of the court to file such complaint. Thereafter the complaint was filed by permission of the court, and subsequently a default thereon was entered against appellant, without any additional service thereof. This was erroneous; a copy of the supplemental complaint should have been served upon appellant after it was filed, and the judgment should be modified to the extent of the relief granted by that complaint. (Washburn v. Wilkinson, 59 Cal. 538.)

Appellant attacks the proof of service. The defendant was sued as “ Rosa ” Kilfoy; the return shows the service to have been made upon “ Rose ” Kilfoy, “ by delivering to “ Rose ” Kilfoy, one of the defendants, personally, in the city and county of San Francisco, state of California, a copy,” etc. Upon this return a default was entered against “ Rosa ” Kilfoy. It was said in Commonwealth v. Donovan, 13 Allen, 571: “ The question whether one name is idem sonans with another is. not a question *89of spelling, but of pronunciation, depending less upon rule than upon the usage.” In various languages “Rose ” is pronounced “ Rosa,” and even in this country, in various communities and among various classes of people, that pronunciation is maintained. Indeed, it may well be said that they are substantially the same name, and taken in connection with the recital in the return, her identity as one of the defendants, as against nothing to the contrary, is prima facie established.

The record is not all before us, and in its absence we cannot say that the attorney’s fee allowed to plaintiff was unreasonable.

Let the cause be remanded, and the judgment modified to the extent of the relief given by the supplemental complaint, and in all other respects let it be affirmed.

Paterson, J., and Harrison, J., concurred.