Carson daily appeal. [volume] (Carson City, Nev.) 1873-1877, 1873-11-07
UNITED STATES FOR THE DIS
TRICT OF NEVADA.
Kentucky Silver Mining Comrs
vs. II. H. Day ct al.

service upon them. 1t Is grounded upO1
the failure of the plaintiff to set out til
/ names, as defendants. i'll the introducto
~ part of the bill and in the prayer fc
process They claim that not beng ma
med in the bill, they are not parties Il
, | the suit and that therefore the service o
process Of subpoena upon them is /;
nullity.
In the introductory part of the bill
, plaintiff states that it brings its bill
against H. H. Day, Thomas j. Andrews
| ". Fl. Clark, and one hundred and fifty
other persons OF whose names complain,
ant is ignorant and who are designated
each by the name of John Doe, and
whose true names when discovered,
\ complainant asks leave to insert herein
with apt words to charge them as de-
PENDANTS, all OF whom are residents Of
Phoebe, in the county of Lincoln il the
State of Nevada: and thereupon yoTiz
Orator complains and says that COM
pIainant is a citizen OF the State of Cali
iorria. and that each and all Of the
| defendants are citizens OF the State OF
! Nevada. -
/ In the PRAYER fog process Z subpoena
| Is prayed for TO be directed to III. II.
Day, Thomas J. Andrews. ". Il. Clarl,
ami the one hundred and fifty other per-
sons OF whose names complainant is ig
.Io-ant who are designated herein each
by the name OF John Doe" The sub
ptaIa stated the names OF the defendants
IL like manner.
In support Of the motion an affidavit
IS filed showing that these persons at
the time ther were served had been for
months residing in Phoebe and that
their true names could have been easily
discovered by inquiry in the town Or =.
the Raymond 4 Ely mime; that the true
names Of many of .hen were actually
known TO plaintiff and to J. Is. E. Caval-
her it; Superintendent, and to W. :.
Mesick and its Trustees, and that speci-
ally, NJ Fuller, ". II. RAYMOND and
John p Kelley were 50 known before
the filing OF the bill.
The question presented is whether,
upon this state Of the case. the service of
the subpoena upon these persons is valid
and b;ings them legally within the juris- |
dict;on of this Court. And this involves /
the inquiry, whether these persons seryet! |
are named in tho bill, or 10y its aver |
nients SO designated. rs defendants. that |
they are to be considered parties TO this |
suit. There can oc no suit without par
ties and It i essential that the bill
should point GU; with certainty who the /
parties plaintiff and defendant are.
- When it Is uncertain. who are COM .
plairan.s, OF who are TIE persons called .
10 answer, tn salt Is fundamentally de /
fectIye: and il IS the fault Of him who ,
institutes the SUI: (Eimendorf vs. De I
iancey Hop. Ch. BOB in the same case
it w.lS said, lit IS nee, sSary tina; every
bill should clearly display the persons
- ho are i:lp.eadeG as defendant. L ii
does not the defect IS one of the sub
stance and Is fatal.
The twentieth equity rule 81 this
Court requires that every I'LL. in
Inc introductory part thereof, shall
contain the names, places Of abode and
citizenship of all parties plaintiffs and
defendants by and against whom the
Dill is brought" Rule % requires that
the prayer Tor the process OF subpoena
n the bill shall contain the name OF all
he defendants named il the introduc-
org part of the bill
The language of these rules is plain,
md unless we give to II some other than
IS ordinary meaning the names OF the
defendants must be stated III the bill;
lot some other description or designa-
ion of them, nor an excuse fox not
Eating their names, ba, the written
etters or Characters expressing the !
ounds by which each defendant is !
Known and distinguished" 1t wouid
,e pervers;on of the language to give
o the word name in these rules any |
'ther definition. To til. argument for
,laintif that e baptisnial name is only
me way Of designating Il person as de- {
endant, and that, by some other des- I
TiptiOn such as tho heir OF 4" or the '
'artner OF B. he may be- as clearly de-
glated as by his .4a,ne, there are two {
nsxe;s, one that neither IN the INTRO
ucto-y part Of the bill nor IL the prayer .
Or process, is there any description !
'hatuver OF the one hundred aaa nftY [
e-sons rot named, or any designation. a
I them except by the t.cjIrI1Gs nan.- G
DIN Doe: the other, that sach descrlp- \
on Is not naming a party within the a
,eaning Of the rule. 1t is essential that o
WI: O; error should set out the names q
al the parties to- the Judgment Of the 0
over count, and such vrIts have been 4
by the Supreme Court, be- .
.Gse the names Of the defendants were {
It out as ''Strader, Pevine & Co" !
SDlyth VS. Strader II How. 81; be- n
,use the citation vas issued to one nos II
party, and the plaintiffs were described II
, Davenport ct al, Heirs to John 7
avenpoIt, deceased" Davenport vs. y
fletcher IL How. I42); because the writ Il
as brought in the name Of Mary
eneale and Others (Deneale vs.
rcher s, Pet. 52G); and because the q
rit described the plaintiffs generally as Il
he e ! III