No *2,183.*

#### HIRAM ROSENCRANTZ, *et al.,*Appellants, *v.*DANIEL ROGERS, *et al.,*Respondents

Fictitious Names. — Ignoeance of tbüe name must be Beal not 'Willful. When a party is sued by á fictitious name, upon the ground that the plaintiff was ignorant of the name of the defendant, under the 69th Section of the Practice Act, the ignorance of the name must he real, and not willful ignorance or such as might be removed by mere inquiry, or a resort to - means of information easily accessible.

Idem. — Dismissal of Action as to Paety Designated by. — Pbactice.—When a party notnamed a defendant,who was served with the summons as a party designated by a fictitious name, appears in Court, and moves to set aside the service of the summons, and dismiss the action as against him, and it appears that there was no averment, in the complaint, that the plaintiff was ignorant of the true name of the person intended to be made a defendant, and that the true name might have been easily ascertained by proper inquiry, and no offer was made by plaintiff’s attorney in response to the motion, to insert the true name in the complaint, the motion was properly granted by the Court to-dismiss the action as against the moving party.

The facts are stated in tbe opinion.

*B. 8.*Brooks, for Appellants.

Eitberthese (fictitious) persons were defendants, or they were not; if they were defendants judgment could not be entered in their favor, except upon trial of the cause, and that could only be had upon issue joined; if they were not defendants in the suit, they could not move in the cause at all, nor could any judgment be entered therein, in their favor and against the plaintiff. (See *Dimick*v. *Derringer,*82 Cal. 488, 1 Chitty, PI. 245.)

The Practice Act provides what the complaint shall contain. (Pr. Act, sec. 39). Plaintiff may insert fictitious name when the name is unknown to him. (Pr. Act, Sec. 69, 540). The statute does not require that he should state that the name is fictitious, and that he does not know the true name. (Pr. Act, Secs. 69, 540). Such an allegation would form no part of the title of the action, or facts constituting the cause of action, nor of the prayer for relief. Issue could not be properly joined upon such an allegation. It would be an immaterial issue. The only way of taking advantage *490of a misnomer is by plea in abatement, giving the true name. If not taken advantage of by plea in abatement judgment by fictitious nam e is valid.

There is no precedent for setting aside tbe service of process, by order, on motion for misnomer of defendant. This is not one of the cases prescribed in which a dismissal of the action is allowed. (See Pr. Act, sec. 148.)

*W. H. Patterson,*for Respondents.

There is no warrant, or authority, in the Practice Act, or in any known rule or authorized precedent, which will permit a party to sue “ known persons,” by inserting fictitious names in the summons and in the title of the complaint without any allegation respecting them, or any reason why fictitious names are inserted. *{Ford*v. *Doyle,*37 Cal. 346 ; *McNally*v. *Mott,*3 Cal. R. 235-; *Sutter ~v. Gox, et. al.*6 Cal. R. 415 *; Crandall*v. *Beach and John Doe,*7 Howard P. R. 271.)

A party served by a fictitious or false name, may answer and set up his plea of the misnomer, or otherwise, as the case may be. But he may also resort to his motion before he has answered, to have the plaintiffs proceedings against him dismissed. (See *Elliott*v. *Mart,*7 How. P. R. 25*; Dale*v. *Manly,*11 Id. 138. See contra, Woodruff J. in *Miller*v. *Stilhner et. al.*and the *reporter’s note*to this case, on page 518. Tillinghast and Shearer’s Practice and Pleading, vol. 1, page 354).

When the application was made by the moving parties in the Court below, plaintiffs did not seek, by any application on their part, to retain the action against them by any suggestion of amendment of the summons and complaint. There is no attempt made to prove that any diligence was used, or that the persons intended to be designated were not in fact known.

Wallace, J.,

delivered the opinion of the Court, Rhodes, 0. J., Crockett, J., and Temple, J. concurring

The Practice Act (Section 69) provides that “ when the plaintiff is ignorant of the name of the defendant, such *491defendant may be designated in any pleading or proceeding by any name; and when his true name is discovered, the pleading or proceeding may be amended accordingly.” This ignorance of the name must, of course, be real, and not feigned ; it must not be’willful ignorance, or such as might be removed by mere inquiry or a resort to means of information easily accessible.

By Section 39 it is provided that the complaint shall contain * * “ the name of the parties to the action, plaintiff and defendant, ” and this is the general rule. By Section 69 a plaintiff who is unable to comply with this general rule in this respect, and therefore exposed to possible loss by the mere misfortune of not knowing or being able to learn the name of his intended adversary, is per_ mitted to designate him for the time being by some fictitious name, upon condition, however, that as soon as he learns his true name he will conform to the general rule laid down in Section 39, by inserting it in the pleading.

We think that there is no conflict between these two sections of the Practice Act. Section 39 gives the general rule, and Section 69 provides an exception to it.

In this case four plaintiffs, in 1868, brought an action of ejectment for the recovery of a tract of some twenty-two acres in the city and county of San Francisco, embracing a portion of the “ Olds Tract.” They employed an attorney who had already been engaged in litigating the title to the *“*Olds Tract.” No averment is contained in the complaint to the effect that the plaintiffs are ignorant of the true name of any person intended to be made a defendant therein, but it proceeds to name the defendants as follows <; “ Daniel Rogers, John S. Love, JoelS. Polack, Mary Polack, John,d)oe, Pierre Ohesseauz, Abner Phelps, Charlotte! Phelps (his wife), Julia B. Olds, A. P. Jordan, Joane E. Bavis, Wm. H. Sharp, Richard Bix, Haus Bix, Afrieanus Black, James Blue” — alleges them to be residents of San Francisco, and in the occupation of the premises sued for.

*492Arnold Fuller, wbo was not named as a defendant, was served witb tbe summons as “ James Blue.” Fuller is tbe administrator of "William B. Olds, witb tbe will annexed. Olds bad been upon tbis land from December, 1854, to March, 1859, wben be departed tbis life. Tbe records of tbe Probate Court of tbe city and county of San Francisco sbow tbat bis will was admitted to probate in March, 1859 ; tbat bis widow was executrix ; tbat she continued to be such executrix until her death, and tbat Fuller was guardian of tbe children of Olds — and these several matters were readily to be learned from.those records at the commencement of tbe action. Tbe children of Olds, wards of Fuller, were not mentioned in tbe complaint as defendants ; they were respectively served as “ Africanas Black,” “Richard Bix,” etc.

Olds, tbe father, bis widow as executrix : Fuller, as guardian, and these wards, tbe children of William B. Olds, are shown, one witb another, to have bad tbe actual occupancy of these lands for upwards of thirteen years, continuously, before tbe filing of tbe complaint. During tbat time portions of it bad been leased to tenants, wbo bad a garden and dairy and cattle range there, and a bouse and buildings, sheds for cattle, etc., all surrounded witb a good substantial fence,

Tbe Court below was applied to by Fuller and bis wards, on notice to plaintiffs’ attorneys, to set aside tbe sefvice of tbe summons upon them, and to dismiss tbe action against them.

In response to tbis motion, no offer was made by tbe plaintiffs’ attorney to insert tbe names of Fuller or bis wards in tbe complaint ás defendants.

On tbe bearing of tbe motion, tbe Court below dismissed tbe action as against tbe moving parties, and tbe plaintiffs have appealed.

We see no error in tbe action of tbe Court in tbe respect complained of. Tbe premises bad been so long, notoriously and uninterruptedly occupied by tbe Olds family, father, mother and children in succession, and their tenants, tbat *493the plaintiffs must be held to have known who were the occupants, for it was easy for them to have done so. They were much less difficult of ascertainment than were the exterior lines of the tract sued for, and which are given in the complaint by calls and distances.

Judgment affirmed.