M'Nally v. Mott

3 Cal. 235 | Cal. | 1853

Heydenfeldt, Justice,

delivered the opinion of the court. Wells, Justice, concurred.

The defendant was sued and served by the name of George N. Mott, and making no appearance, judgment was entered against him by the same name. Afterwards, and without notice to the defendant, the plaintiff, on his own motion, obtains an order from the court to amend the judgment by altering the name of George to Gordon, in which state the judgment now stands.

It is very evident that the amendment is not sustained by the previous proceedings. The action is against one person and the judgment against another. We have no power to determine, on the application of the plaintiff alone, that George and Gordon are one and the same person. There is no legal proof of that fact in the record, and prima facie, two different names must be held to signify two different persons.

The judgment is reversed andithe cause remanded.