No.14831 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

CHARLOTTE VINCENT, 

Plaintiff and Appellant, 

-vsJOHN ROBERT EDWARDS et al., 

Defendants and Respondents. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Charles Luedke, Judge presiding. 

Counsel of Record: 

For Appellant: 

McDonough, Cox and Simonton, Glendive, Montana 

For Respondents: 

Douglas Y. Freeman, Hardin, Montana 

Ronald Lodders, Billings, Montana 

Charles Cashmore, Billings, Montana 

flf;T ,, : ir;? 

Filed: -. 

Submitted on briefs: September 12, 1979 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

 his is an appeal from the judgment in a personal 

injury action from the District Court, Thirteenth Judicial 

~istrict, Yellowstone County. Plaintiff Charlotte Vincent 

appeals from the District Court order granting summary 

judgment in favor of the defendants, Schultz & Meyer Construction Company, Empire Sand & Gravel Company, Inc., and 

Jimmy D. Arndt. 

Plaintiff brought this cause to recover for injuries 

suffered in an automobile accident on the night of July 3, 

1974. She was a passenger in an automobile which struck a 

cow lying on Interstate 94 which was then under construction. The cow had been struck by two other automobiles 

immediately before plaintiff's collision. 

The original complaint alleges the accident resulting 

in plaintiff's injuries was caused by the negligence of the 

operators of the two other automobiles and the construction 

companies working on Interstate 94. The original complaint 

was filed on June 28, 1977. At that time, plaintiff positively knew the identity of only two defendants, John Robert 

Edwards and George Mike Edwards. Consequently, the driver 

of the second car, Jimmy D. Arndt, and the two construction 

companies, Schultz & Meyer Construction Company and ~mpire 

Sand & Gravel Company, Inc., were designated by fictitious 

names pursuant to section 25-5-103, MCA. Respondent Arndt 

was designated as "John Doe" and the two construction companies were designated as "A.B.C. Construction company" in 

the original complaint. 

Later, plaintiff moved to amend the original complaint 

upon discovering the true identities of the fictitiously 
named defendants. The motion was granted on September 25, 

1978, and plaintiff filed an amended complaint. 

The three fictitiously named defendants were each 

served with a summons on or after September 25, 1978. Prior 

to such service, they had no notice of either the accident 

or the institution of any prior action on behalf of plaintiff. There is no dispute that the true names of the two 

construction companies could have been obtained from information easily accessible upon mere inquiry. 

The three fictitiously named defendants moved for 

summary judgment on the grounds that the three-year statute 

of limitations on plaintiff's claim had run on July 3, 1977, 

under section 27-2-204(1), MCA. The motion was granted, and 

judgment was entered against plaintiff on April 30, 1979. 

Plaintiff appeals from this judgment. 

This appeal raises an issue of first impression in this 

jurisdiction: whether or not the "relation back" limitations 

of Rule 15(c), M.R.Civ.P., apply to an amendment of a complaint made to identify defendants originally named fictitiously pursuant to section 25-5-103, MCA, and made after 

the statute of limitations has run. 

This appeal involves two Montana statutes and their 

interpretation and relationship to each other. Plaintiffappellant relies on the fictitious name statute, section 25- 

5-103, MCA, which provides: 

"Suing a party a fictitious name. When the 

plaintiEf is ignorant of the name of the defendant, such defendant may be designated in any 

pleading or proceeding by any name; and when 

his true name is discovered, the pleadings or 

proceedings may be amended accordingly." 

The second statute relevant to this appeal is Rule 15(c), 

M.R.Civ.P., regarding the relation back of amendments to 

pleadings, which provides in pertinent part: 
"Relation back -- of amendments. Whenever the 

claim or defense asserted in the amended pleading arose out of the conduct, transaction, or 

occurrence set forth or attempted to be set 

forth in the original pleading, the amendment 

relates back to the date of the original pleading. An amendment changing the party against 

whom a claim is asserted relates back if the 

foregoing provision is satisfied and, within 

the period provided by law for commencing the 

action against him, the party to be brought in 

by amendment (1) has received such notice of 

the institution of the action that he will not 

be prejudiced in maintaining his defense on the 

merits, and (2) knew or should have known that, 

but for a mistake concerning the identity of 

the proper party, the action would have been 

brought against him." 

In her brief appellant argues that Rule 15(c), M.R.Civ.P., 

and the fictitious name statute speak to different circumstances. She contends that section 25-5-103 is concerned 

with defendants whose names or identities are originally 

unknown and are later discovered and no change of parties is 

involved. Rule 15(c), she argues, is concerned with a 

situation where a plaintiff has either misnamed the proper 

defendant or has mistakenly named the wrong defendant, and 

therefore wishes to make an amendment "changing the party." 

She argues that the requirements of Rule 15(c), which admittedly have not been satisfied here, do not apply to amendments substituting named defendants for fictitious defendants 

after the statute of limitations has expired. Thus, appellant contends, amendments identifying and substituting named 

defendants relate back to the filing of the original complaint naming fictitious defendants, and the statute of 

limitations is tolled. The only purpose of the fictitious 

name statute is to toll the statute of limitations in a 

situation such as that which confronted appellant in the 

present case. Finally, appellant denies that there is any 

requirement for a plaintiff utilizing the fictitious name 

statute to exercise reasonable diligence to determine the 
true name of the defendant, or in the alternative, if there 

is such a requirement, the defendant must demonstrate prejudice, which has not been done in this case. 

Respondents urge that the statute of limitations had 

run out before any of the respondents were named as parties 

defendant, and that the trial court therefore properly 

granted summary judgment. They argue that the amended 

complaint does not relate back to the filing of the original 

complaint for two reasons: (1) Rule 15(c), M.R.Civ.P., is 

applicable and its requirements have not been met; and (2) 

the plaintiff did not exercise reasonable diligence to 

determine the true names of the fictitiously named defendants. 

Because we hold that an amendment to a complaint substituting named defendants for fictitiously named defendants 

falls within the scope of Rule 15(c), it is not necessary 

for us to consider the second issue raised on appeal. 

At the outset it is worthy of note that while Montana's 

fictitious name statute, section 25-5-103, MCA, permits 

amendment of the pleadings upon discovery of the defendants' 

true names, the statute is silent as to the relation back of 

the amendment and the statute of limitations. Both of these 

issues, the relation back of amendments and the statute of 

limitations, are specifically addressed in Rule 15(c), but 

are not mentioned in section 25-5-103, the fictitious name 

statute. Nevertheless, appellant contends that despite the 

absence of any language in section 25-5-103 tolling the 

statute of limitations or providing for the relation back of 

an amendment, the only purpose of a fictitious name statute 

is to toll the statute of limitations and the amended complaint must therefore relate back to the filing of the 

original complaint, citing Annot., 85 A.L.R.3d 130, 134, in 
support of her position. We refuse to read such a rule into 

section 25-5-103 by implication, since Rule 15(c) expressly 

deals with the matter. 

It is clear that the more specific provisions of Rule 

15(c), M.R.Civ.P., are controlling in the present case. 

This rule provides: 

". . . An amendment changing the party against 

whom a claim is asserted relates --- back if the 

foregoing provision is satisfied [same transaction or occurrence]and, within the period 

provided by -- law for commencing the action 

against him, the party to be brought in by 

amendment (1) has received such notice of the 

institution of the action that he will not be 

prejudiced in maintaining his defense on the 

merits, and (2) knew or should have known that, 

but for a mistake concerning the identity of 

the proper party, the action would have been 

brought against him." (Emphasis and bracketed 

material supplied. ) 

Appellant apparently acknowledges that the requirements 

of Rule 15 (c) have not been met in this case in that neither 

respondent Jimmy D. Arndt nor respondents Schultz & Meyer 

Construction Company and Empire Sand & Gravel Company, Inc., 

had any notice or knowledge of the institution of the action 

against them until after the three-year statute of limitations had expired. Laforest v. Texaco, Inc. (1978), 

Mont. , 585 P.2d 1318, 1321, 35 St.Rep. 1580. Appellant 

seeks to avoid the consequences of this fact under Rule 

15 (c) by attempting to limit the application of Rule 15 (c) 

to situations where a plaintiff has either misnamed the 

proper defendant or has mistakenly named the wrong person as 

a party defendant, and by attempting to distinguish the 

circumstances covered by the fictitious name statute, where 

the identities of defendants whose names were originally 

unknown are later discovered. We agree with the respondents 

that this is a distinction without a difference. 
As far as respondents are concerned, these amendments 

were amendments "changing the party against whom a claim is 

asserted," since the first time respondents had any notice 

or knowledge that they were being sued was when they were 

served with the amended complaints. From their standpoint, 

respondents were completely new parties brought into the 

action for the first time after the statute of limitations 

had run. 

Rule 15(c) is designed to provide protection for individuals in the position of respondents, who had no notice or 

knowledge of the lawsuit until more than a year after the 

statute of limitations had run. In Laforest v. Texaco, Inc. 

(1978) - Mont. , 585 P.2d 1318, 1321, 35 St.Rep. 

1580, the original complaint erroneously named the wrong 

persons as defendants, and the proper defendant, Texaco, had 

no notice or knowledge of the lawsuit until it was served 

with an amended complaint after the statute of limitations 

had run. Although the fictitious name statute was not 

involved in Laforest, this Court discussed the reasoning 

underlying Rule 15(c) in that case, quoting from Munetz v. 

Eaton Yale & Towne, Inc. (E.D. Pa. 1973), 57 F.R.D. 476, 

"'If plaintiff had in mind initially the proper 

entity or person and actually had served that 

intended person or entity, then it is clear that 

the amendment would be permitted even though the 

statute of limitations had run as to the person 

so misnamed in the process and complaint, because the person or entity would already be in 

court, would have had adequate notice of the 

pendency of the action, and, therefore, there 

would be no prejudice to the person or entity 

by allowing the amendment. However, when the 

effect of the amendment is to bring before the 

Court for the first time a completely different 

person or entity which had not previously had 

notice of the suit and such amendment, assuming 

it would relate back, occurs after the applicable 
statute of limitations has run, then the new 

person or entity would be prejudiced and the 

amendment is not allowed . . . 

"'The addition or substitution of parties who 

had no notice of the original action is not allowed. Substitution of a completely new defendant creates a new cause of action. Permitting 

such procedure would undermine the policy upon 

which the statute of limitations is based.' 

(Citations omitted. ) " 

This same rationale has been followed in cases from 

other jurisdictions considering both a fictitious name 

statute similar or identical to Montana' s - and Rule 15 (c) : 

"As an initial matter, because from the viewpoint of the party sought to be added belatedly, 

it can make no difference whether he was originally designated as John Doe and not served, 

or originally neither named nor served because 

another person was erroneously thought to be 

the correct defendant, we hold that both situations are encompassed by S 81A-115(c)'s reference to 'changing the party against whom a claim 

is asserted.'" Sims v. American Casualty Company (1974), 131 Ga.App. 461, 206 S.E.2d 121, 

134, aff'd., 232 Ga. 787, 209 S.E.2d 61. 

See also Gould v. Tibshraeny (1973), 21 Ariz.App. 146, 517 

P.2d 104, 106. The policy behind our statute of limitations 

has been stated and given effect by the Montana Court in 

Cassidy v. Finley (1977), - Mont. - , 568 P.2d 142, 144, 

"This Court has often stated one of the objects 

of a true statute of limitations is to prevent 

potential plaintiffs from sitting on their 

rights, and to suppress stale claims after the 

facts concerning them have become obscured by 

lapse of time, defective memory, or death or 

removal of witnesses." 

Appellant argues that the only purpose of a fictitious 

name statute is to toll the statute of limitations so that 

the amendment substituting the defendants' true names for 

the fictitious defendants will relate back to the filing of 

the original complaint. This argument ignores the requirements of Rule 15(c) and the policies expressed in cases 
construing that rule. Furthermore, other purposes and 

applications of the fictitious name statute can be readily 

found in cases involving unknown heirs, in quiet title 

actions and other actions, and in discovery procedures.. 

Appellant relies largely on Annot., 85 A.L.R.3d 130, 

and cases cited therein, for the proposition that an amendment substituting the true name of a defendant designated by 

a fictitious name in the original complaint relates back to 

the filing of the original complaint for the purpose of 

tolling the statute of limitations. Two of the cases, while 

considering a fictitious name statute or a court rule allowing designation of unknown defendants by a fictitious name, 

were decided before the adoption of Rule 15(c) or its equivalent in their respective jurisdictions. Therefore, Maddux 

v. Gardner (1945), 239 Mo.App. 289, 192 S.W.2d 14, and Wall 

Funeral Home, Inc. v. Stafford (1969), 3 N.C.App. 578, 165 

S.E.2d 532, cannot be considered as authority for appellant's 

proposition that Rule 15(c) is inapplicable or for the 

proposition that the amendments relate back to toll the 

statute of limitations in the present case, since there was 

no Rule 15(c) or equivalent to consider when those cases 

were decided. By the same token, Sousa v. Casey (1973), 111 

R.I. 623, 306 A.2d 186, and Farrell v. Votator ~ivision of 

Chemetron Corp. (1973), 62 N.J. 111, 299 A.2d 394, also 

failed to address the question presented here concerning the 

effect of Rule 15(c) on fictitiously named defendants. 

While those jurisdictions had adopted Rule 15(c) or its 

equivalent at the time the cases were decided, the decisions 

made no mention of the rule. Thus, although Rule 15(c) was 

in force, those cases were decided solely on the basis of a 

fictitious name statute or court rule, and the effect of 

Rule 15(c) was not considered. 
Appellant points out that Montana's fictitious name 

statute, section 25-5-103, MCA, was adopted verbatim from 

the California statute, and argues that the California cases 

construing that statute support her contentions. This 

argument ignores the fact that California has no Rule 15(c) 

nor any equivalent procedural rule that speaks to the relation back of amendments. See West's Annotated California 

Code of Civil Procedure, sections 473, 474. Therefore, 

Mayberry v. Coca Cola Bottling Co. (1966), 244 Cal.App.2d 

350, 53 Cal.Rptr. 317, and other California cases are distinguishable since they did not consider the issue involved 

in the present case. 

On the other hand, the federal cases cited by respondents were decided under Rule 15(c) alone, as there is no 

federal fictitious name statute, and the federal courts have 

not adopted a court rule allowing the designation of unknown 

defendants by fictitious names. Craig v. United States (9th 

Cir. 1969)r 413 F.2d 854; Stephens v. Balkamp, Inc. (E.D. 

Tenn. 1975), 70 F.R.D. 49. This is true even in a diversity 

suit where state law provides for a fictitious name statute, 

on the grounds that such a statute is procedural rather than 

substantive, and is therefore inapplicable in a federal 

diversity action under Erie Railroad Co. v. Tompkins (1938), 

304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. See Williams v. 

Avis Transport (D. Nev. 1972), 57 F.R.D. 53. 

The only cases considering both a fictitious name statute 

and Rule 15(c) have held that an amendment to a complaint substituting named defendants for fictitious defendants will 

relate back to the filing of the original complaint and toll 

the statute of limitations only if the requirements of ~ule 

15 (c) are satisfied. Gould v. Tibshraeny (1973), 21 ~riz.App- 
146, 517 P.2d 104, is squarely on point with the present case. 

In Gould the plaintiff named fictitious defendants pursuant 

to a fictitious name statute nearly identical to Montana's, 

then subsequently filed an amended complaint substituting 

Tibshraeny for one of the "Doe" defendants after the statute 

of limitations had run. The court rejected the same argument 

presented here by appellant, holding that the amended complaint did not relate back to the filing of the original complaint to toll the statute of limitations where the requirements of Rule 15(c) had not been met: 

"It is fundamental that the purpose of the 

statute of limitations is to provide a cutoff 

point in time for stale claims. Rule 15(c) 

carries out this sound policy by requiring 

notice of the institution of the action within 

the time limitations set by the statute of 

limitations before an amendment adding new 

parties will relate back to the date of the 

original pleading." Gould, 517 P.2d at 106. 

The Arizona Court relied on an earlier Arizona decision 

which is also on point. See Hartford Insurance Group v. 

Beck (1970), 12 Ariz.App. 532, 472 P.2d 955. Cases considering both a fictitious name statute and Rule 15(c) have 

also been decided in Georgia with the same result. In Sims 

v. American Casualty Company (1974), 131 Ga-App. 461, 206 

S.E.2d 121, 134-136, aff'd., 232 Ga. 787, 209 S.E.2d 61, the 

plaintiff amended her complaint to substitute several named 

defendants for those fictitiously named in her original 

complaint after the statute of limitations had run. Summary 

judgment for the defendant was affirmed, against the plaintiff's contentions that the amendment related back to the 

filing of the original complaint under the fictitious name 

statute. As in the present case, the requirements of Rule 

15(c) had not been satisfied because the defendants did not 

have notice or knowledge of the action within the period of 
limitations. See also Brer Rabbit Mobile Home Sales, Inc. 

v. Perry (1974), 132 Ga.App. 128, 207 S.E.2d 578, and 

Annot., 85 A.L.R.3d 130, 146-148, S7(a). 

In summary a plaintiff may utilize the fictitious name 

statute and may amend a complaint to substitute the true 

name of the defendant when discovered. If the amendment 

occurs after the statute of limitations has run, however, 

the real or intended defendant must have either been served 

or otherwise received notice of the institution of the 

action under the conditions provided in Rule 15(c). 

Af firmed. 

We concur: 

%'..UE$%&~, Chief Justice 

y-ibvL L- ,b,h7 

Justices