#### Abraham Lyons *v.*Charles Donges, et al.

1. Where the real debtor is sued, and served with process, with a wrong description of his Christian name, the court thereby acquires no jurisdiction over him.

2. A motion to require the sheriff to make a new return, or amend his former return, so as to show the real name of the party served, will not he entertained.

Special Term. — On motion of plaintiff to permit the sheriff to amend his return, so as to show the real name of pai’ty served with process of summons, by substituting the real name of the defendant, Christopher Schumm, for that of Charles Schumm.

The petition was filed by plaintiff against Charles Donges, Charles Schumm, and Solomon Klein, and summons was accordingly issued, and returned by the sheriff, “served Charles Schumm by copy personally, and not found as to Charles Donges and Solomon Klein.”

*Joseph Abraham,*for plaintiff.

*Stallo & Leake,*for defendants.

Storer, J.

Motion to permit the sheriff to amend his return, by changing the name of the defendant, Schumm, from Charles to Christopher.

The plaintiff' shows by his affidavit, that the process was served upon *Christopher;*that he pointed him out to the sheriff', and did not know his real name at the time.

We do not think it would be safe to require the sheriff to make any new return, or amend his former return. He may do so if he is satisfied that the facts will warrant him, but we leave the responsibility with him.

Before the code, when a defendant was sued by a wrong Christian name, he might be declared against by his true name; but as the petition, which is the substitute for the declaration, must be filed before the summons issues, the *143former rule does not apply. It is in the power of the court, nevertheless, to allow any amendment of the petition for all practical purposes — it then becomes a new petition, and service should be made upon the parties. Section 641 of the code provides for the case of an unknown defendant, and prescribes the mode of procedure securing to the party seeking redress his appropriate remedy.

This action is not thus brought, and the plaintiff can not, therefore, ask our aid, as he might well do, if his petition had been framed to meet the real difficulty in the ease.

Motion overruled.

Thereupon, the sheriff made an amended return as follows : “ Served Christopher Schumm, sued by the name of Charles Schumm, with a copy of this summons, and not found as to the other defendants within named.” On a further writ, issued to Butler county, the defendants, Donges and Klein, were returned “ served.”

Thereupon, the following entry was made: “ And now the sheriff having amended his return in this cause, and it appearing that *Christopher*Schumm, Charles Donges, and Solomon Klein, have been duly served with process herein, the plaintiff has leave to file his petition against said defendants.” Accordingly, on the same day, the plaintiff filed an amended petition against Christopher Schumm, et al.

Shortly thereafter a further entry was made, setting aside this last entry, and instead thereof the following entry was ordered to be made: “It having been suggested to the court that the sheriff has amended his return, plaintiff has leave to amend his petition in the above cause, subject to all legal exceptions to the return of the sheriff and the amendment thereof.”

Afterward, on trial of the cause, a verdict was rendered for the defendants, followed by a judgment on the verdict.