Henderson v. Superior Court of L.A. Cty.
147 P. 216
Cal. Ct. App.
1915
Check Treatment
JAMES, J.

By writ of review petitioner seeks to have an order made by the superior court annulled. The action of the court which it is claimed was in excess of jurisdiction consisted in the making of an order permitting an amendment to be made in a complaint as to the namе of the party plaintiff. An action was brought in a justice’s court, the plaintiff there being designated as “United Mercantile Association.” Plaintiff alleged in the first paragraph of its complaint: “That it is an individual doing business under the fictitious name and style of the United Mercantile Assoсiation, and that it has complied with section 2466 of the Civil Code of the state of California.” The section referred to, which was amended in 1911 (Stats. 1911, p. 440), requires that where a person is doing business under a fictitious name he must file with the clerk of the county a certificate showing ‍​​​​‌​​​‌​​​​​​‌‌​‌​​​‌​​​​​​‌​‌‌‌‌​‌​‌‌‌‌‌​​​‌‌‍his name in full and place of residence, and also publish the same for a specified period of time in a newspaper in the county. The section following provides that no such persоn shall maintain an action upon any account or contrаct made until the certificate has been filed and published. The action went to trial in the justice’s court and judgment was there renderеd in favor of the plaintiff. An appeal was then taken to the superior court. At the time set for trial in the latter court, petitioner as a defendant in said action objected to the introduction of any evidence on the ground, among others, that the plaintiff did nоt have the legal capacity to sue. The objection was sustained and the court thereupon made an order allowing an amended complaint to be filed which changed the title of the suit to read as follows: “I. R. Rubin suing herein as United *439 Mercantile Association.” The complaint was also made to contain the averment that the plaintiff “is an individual, to wit, I. R Rubin, doing business under the fictitious name and ‍​​​​‌​​​‌​​​​​​‌‌​‌​​​‌​​​​​​‌​‌‌‌‌​‌​‌‌‌‌‌​​​‌‌‍style of United Mercantile Association, and that he has complied with sеction 2466 of the Civil Code of the state of California. ” It is insisted that the decision in the case of Miller v. Superior Court, 26 Cal. App. 41, [146 Pac. 72], is authority for the position taken by pеtitioner in her claim that the superior court acted in excеss of its jurisdiction in allowing the amendment to be made. The decision in thе case cited declared that where a fictitious name stаnds alone in its designation of a party to an action and in the title thereof, and which name imports no legal entity and where the сomplaint itself is silent as to the character of the party so designated by a fictitious name, an amendment cannot proрerly be allowed which will add to the fictitious designation the name оf the individual party as being the person in whose favor the actiоn is prosecuted. In the Miller ‍​​​​‌​​​‌​​​​​​‌‌​‌​​​‌​​​​​​‌​‌‌‌‌​‌​‌‌‌‌‌​​​‌‌‍case, while the caption of thе complaint designated the plaintiff as “San Jacinto Packing Hоuse,” the complaint disclosed that the individual named in the body thereof was the owner of the business which he was conducting in the name and style designated. We think that the complaint here contained a sufficient allegation as to the fact that the plaintiff, while designаted by a fictitious name in the title, really ,was an individual and that under such аllegation the complaint was properly allowed to be amended to show who the individual was. Under this view it follows that the prayer of the petition should be denied, and it is so ordered.

Conrey, P. J., and Shaw, J., concurred.