Pioche daily record. [volume] (Pioche, Nev.) 1872-1876, 1873-11-11

dismissed by tho Supreme Court, be-
cause the names of the defendants were
set out rs "Strader, Peavine & Co."
(Smyth VS.. Strader ~ How. 1927 be-
cause the citation was issued to one not
a party, and the plaintiffs were described
as Davenport ct al. Heirs to John
Davenport, deceased" Davenport VS..
Fletcher, 16 How. 1872; because the writ
was brought in the name Of Mary
Deneale aud Others" (Deneale VS.. Ar
cher; s Pet. 526); and because tho writ
described the plaintiffs generally as "the
Heirs of Nicholas Wilson, In this law
case the motion was made after appear
ance, but the court held the defect to be
substantial one, and that the objection
could be taken at any time before judg-
mopt. on the ground that the case was
not legally before the Court, and they
had no jurisdiction to try it. (Wilson's
Heirs VS.. Life Ins. Co. u Pet. 140). If
nothing more these cases show that when
it is necessary to set out the " names
in judicial proceedings, other descrip-
tons and designations in lieu thereof
will not do.
In addition to the positive rules of this
court, there is, l think the universal rule
Of Courts of Equity, against the course
pursued by plaintiff in this case. l think
it may safely be said that in no book of
acknowledged authority is there anything
said from which it may be inferred that
when proper parties are unknown they
can be made parties by designating them
in the bill by fictitious name. ] speak,
of course, of the chancery practice un-
changed by statute. But the books do
show US how to proceed when proper
parties are unknown The difficulty is
not overcome by making the unknown
ones parties under false name, but by
dispensing with them altogether, If the
| suit can proceed without them, or by
praying discovery for the purpose of
bringing them before the court. In these
cases the bill alleges the fact of ignorance
Of the names, not as ground for making
the unknown persons parties by fictitious
name, but as an excuse for not making
them parties at all, and that an objection
of want of parties may not prevail.
(Story's Eq. Pl Sec. 92; Fem v. Craig
You. & Coll, PIG; Bawyer v. Covert l
Nern. So So important is it that the
defendants should be distinctly desig-
mated as such, that it is held that those
only are defendants who are named in
the prayer for process, notwithstanding
they are named in the body of the bill.
(Winsdor v. Winsdor 2. Dick. 707.
Fawkes V. Pratt p. W, 593. Story S
Ed. Pl. Sec. Az The subpoena, which
issues of course upon the filing of the
bill, is directed to the defendants named
in the prayer for process. A subpoena
directed to lone hundred and fifty per
sons without naming them, is directed
to nobody. In one case, cited by coun
sci for the moving parties, it appeared
that an infant, who had no name, was {
necessary party, and upon application t.
the Vice Chancellor, he ordered that thu
infant should be described in the sub
pnna TO appear and answer, as til,
youngest female child" of her fathel
aud mother. tEley V. Braughton 2 Sim
1881 This case may be regarded as ON
of those exceptions which were to prov,
the general rule, that the defendants
must be described by name, if they hav'
a name.
And even when by statute the plaintiff
is allowed, il ignorant of q defendant
name, to designate him in pleadings b,
any name until his true name is discov
cred, it is held that the Ignorance mus
be real and not feigned; it must not b,
willful ignorance or such as might be re
moved by mere inquiry or q resort +
means of information easily accessible.
. (Rosencrantz V. Rogers 40 Cal. 4s9). l
i this case the plaintiff is able to state POI
a itively, in its verified BILL the abode an
citizenship of the unknown ones, an
+, even the precise spot of ground upo
i which they were at work at the time G
filing the bill 1t is shown by affidavit
the truth of which has not been question
ed, that these persons are well known i
the town OF Phoebe, have resided there fc
Il months, and that their names could hay
been discovered by inquiry at the min,
u of themselves and of the Superintendent
, of the Raymond & Ely Company; ais
that some of these persons were in ia,
: well known to Cavalier, the Superb
: tendent, and Mesick, one of the trustee
: of the plaintiff. One of the person
+ ignorance, is NJ. Fuller, the Distri'
Judge Of the Seventh Judicial District {
this State.
:, 1t is apparent from these facts thi
q there was no legal excuse for omittir
Is the true names from this bill, even az
l. hitting that in a proper case ficttiou
e names may be used. But l prefer I
"a place the decision upon the broad,
Il ground, that, because these one hundre
and forty-seyen persons are not name
IS in the introductory part of the bill, nj
e in the prayer for process, they are n
n parties to the suit; and for that reaso
II and because the subpoena is not directe
$ to them, the subpoena and the service
% it, so far as they are concerned, ought
e be set asida.
y But the plaintiffs counsel contend
i that all these defects in the bill an
> subpoena have been cured by an appea
!, ance.
q 1t would seem that before a perso
e can be held to have appeared in an q
ton, his name ought to be found som
r. where in the record of that action. u
u til the present motion was made. IL
q only defendants named in the record
> this case were Day, Andrews and CLAIR
y and it would also seem reasonable tn
IS if the applications made to the Judge
Is Chambers, on behalf OF defendant
s. amount to an appearance on the recor
o the appearance should be considered
u made for those named in the record
IL defendants. For it has been held th
'e one not named as party defendant {
D. the record cannot-without the cunse
1 of all the parties to the suit-be allow,
to appear ut the hearing to be heard, al
O. submit to be bound by the decree. (Att
d Gen'l. VS.. Pearson, Sim. 302). And
=. all parties consent, the record may
IL brought into Court and the name insel
III ed in the record. Thus. person int
10 ested in the question, who desires to
% heard and submits to be bound by Il
60 decree, is not allowed to do 30 until he
named as party on the record. Il Dal
1T Oh. 56l).
o. 1t is true that q general appearance
le a defendant is waiver of all irregula
Up ties in the service of the subpoena. B
8, the defects in this case are not mere
regularities in the service of the VIZ
ne they are such as preclude the POSSIBLE
u OF any legal service of the subpoena up
rs those not named in the bill, and they a
ae such as cannot be cured by appearan,
(Carey VS.. Hillhouse, s Geo. 251).
u, IT follows that the service of suhponna