Pioche daily record. [volume] (Pioche, Nev.) 1872-1876, 1873-11-11
KENTUCKY VS.. RAYMOND ~ ELY.

From the Carson Appeal we copy the
decision of Judge IIillyer, Of the United
States District Court:
This is a m otion on behalf OF one him. |
dred and forty-seven persons to set aside |
and auash the supuna and the service
upon them. 1t is grounded upon the
failure of the plaintiff to set out the
names, as defendants, in the introduce
tory part of the bill and in the prayer for
process. They claim that not being
named in the bill, they are not parties to
the suit and that therefore the service of
process of subpoena upon them is
nullity.
In the Introductory part of the bill,
plaintiff states that 1t brings its bill
against II. Ii. Day, Thomas J. Andrews
W. II. 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, COM
plainant asks leave to insert herein with
apt words to charge them as defendants,
all of whom are residents of Phoebe, in
the county of Lincoln in the State of Ne
vada; and thereupon your orator COM
plains and says that complainant is cit
izen OF the State of California, and that
each and all of the defendants are citi-
zens OF the State of Nevada"
In theprayer for process a subpoena is
prayed for to be directed to Ii. II. Day,
Thomas J. Andrews, w. H. Clark and
the one hundred and fifty other persons
Of whose names complainant is ignorant,
who are designated herein each by the
name of John Doe" The subpoena
stated the names of the defendants in
like manner.
In support of the motion an affidavit is
filed showing that these persons at the
time they were served had been for
months residing in Phoebe and that their
true names could have been easily dis
covered by inquiry in the town or at the
Raymond Il Ely mine; that the true
names of many of them were actually
known to plaintiff and to j. B. E. Caval-
lier, its Superintendent, and to W. S.
Messick and its Trustees, and that speci-
ally, NJ. Fuller, w. II. Raymond and
John Z. Kelley were so 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
diction of this Court And this involves
the inquiry. whether these persons
served are manned" in the bill, or by its
averments so designated, as defendants,
that they are to be considered parties to
this suit. There can be no suit without
parties, and it is essential that the bin
should point out with certainty who the
parties plaintiff and defendant are.
90,
plainants, or who are the persons called
to answer, the suit is fundamentally de-
tective; and it is the fault of him who in
stitutes the suit' (Elmendorf VS.. Delan-
cy Hop. Oh 555); in the same case it
was said, sit is necessary that every bill
should clearly display the persons vino
are impleaded as defendant. II it does
not the defect is one of the substance
and is fatal.
The twentieth equity rule of this Court
requires that "every bill, in the intro
ductory part thereof. shall contain the
names, places of abode, and citizenship
OF all parties, plaintiffs and defendants,
by andagainst whom the bill is brought"
Rule 20 requires that "the prayer for the
process Of subpoena in the bill shall con-
tain the names of all the defendants
named in the Introductory part of the
bill"
Tho language Of these rules is plain,
and unless we give to it some other than
its ordinary meaning. the names Of the
defendants must be stated in the bill;
not some other description or designa.
ton Of them, nor an excuse for not
stating their names, but "the written
letters or characters expressing the
sounds BY which each defendant ia
known and distinguished. 1t would
be perversion of the language to give
to the word name in these rules any
other definition. To the argument for
plaintiff that baptismal name is only
one way of designating person as de-
PENDANT, and that, by some other des-
cription such as "the heir of A. or ''the
partner Of B, he may be as clearly des-
ignated as by his name, there are two
answers; one, that neither in the intro.
ductory part of the bill nor in the prayer
for process, is there any description
whatever OF the one hundred and fifty
psrsons not named, or any designation
Of them except BY the fictitious nsms