217 F. 422 | D. Mont. | 1914
On motion to remand. Defendants are a foreign street railway corporation and its servants, jointly against whom plaintiff brings this a passenger’s action for personal injuries due to the servants’ negligence. The servants are designated John Doe and Richard Roe, true names unknown, respectively conductor and motorman of the car wherein plaintiff was passenger. The corporation removed the case hither for diverse citizenship. Its contention is that the servants, being designated by fictitious names and not served with process prior to removal, are merely nominal or formal parlies, who can be ignored in removal. To this it cites Parkinson v. Barr (C. C.) 105 Fed. 82, and Loop v. Winters’ Estate (C. C.) 115 Fed. 366.
These cases so hold, but therein they are not supported by the authorities upon which they purport to rely, and have no foundation in principle. The statutes of this state authorize designation of defendants by fictitious names when their true.names are unknown to the plaintiff. The status of parties, whether formal or otherwise, does not depend upon the names by which they are designated, but upon their relation to the controversy involved, its effect upon their interests, and whether judgment is sought against them. When, as here, the cause of action is against them, and substantial relief sought against them, they are real parties in interest. Here, though designated by fictitious names, their citizenship is vital on removal, and, not appearing herein, removal was unwarranted.
Remand ordered. Costs to plaintiff.
