p. 168McCREERY v. EVERDING et al.Headnote
Misnomeb.—Where a party defendant is sued, and answers by a wrong name, and judgment is entered against him accordingly, no advantage can be taken of the misnomer.Judgment—Estoppel—Landlobd.—In an action of ejectment against a tenant, if the landlord assume the defense, he is bound by the judgment.
Appeal from an order refusing to restrain the execution of a writ of possession against Ann Connolly and E. A. Lawrence, Appellants, in the Twelfth District Court, City and County of San Francisco. Daingerfield, J.
The facts are stated in the opinion.
E. A. Lawrence, for Appellants.
The judgment is not against Herman O. Rinaldo, but against Rinaldo Swartzenbergcr; and petitioners cannot be turned out by a writ against Swartzenberger. (Ford v. Doyle, 30 Cal. 346 .) The complaint must be amended, and the true name inserted. (McKinley v. Tuttle, 42 Cal. 571 ; Bohannon v. Hammond, Id. 227; (Rosencrantz v. Rogers, 40 Id. 489.S. M. Wilson and Wilson & Wilson, for Respondents.
The appellants themselves succeeded to the interests of their tenant. He surrendered to Mrs. Connolly the possession, and she conveyed a part to Lawrence. They had the option to continue the defense in the name of Swartzenberger, or to have themselves substituted. (Code Civ. Proc. § 385.) They exercised their option, and continued to use the name of Swartzenbergcr. They took the actual defense, and had their day in Court. They are now estopped to claim that the name they used to protect themselves was improperly used. The actual parties were before the Court, and had a full and fair trial. The judgment binds them as much as if they were parties to the record. (Valentine v. Mahoney, 37 Cal. 389 ; Dutton v. Worscham, 21 Id. 619; Coldemoor v. Brooks, 28 Id. 156; Dimich v. Derringer, 32 Id. 488; Wheelock v. Warschauer, 34
p. 169Id. 265; Russell v. Mallon, 38 Cal. 263 ; Kelly v. Forsythe, 24 Wall. 187 .)This, like the case just decided, is an appeal from an order refusing to stay the execution of a judgment in ejectment. The appeal was taken by one E. A. Lawrence and Ann Connolly.
Mr. Lawrence, of counsel, (one of the appellants) presents the point that the surname of one of the defendants in ejectment who was sued and served, and who appeared in the action (by the same Mr. Lawrence, as his attorney) under the name of Rinaldo Swartzenberger, was not Swartzenberger, but Rinaldo only. There is no dispute that the man who appeared as defendant in ejectment—whether Rinaldo with or without Swart zenberger—was the tenant of Ann Connolly, one of the moving parties in the Court below, and that she or her husband conducted the defense in the name of her tenant. This is not the case of a suit against a defendant by a fictitious name. The defendant Swartzenberger did not plead a misnomer in abatement, but admitted his name to be Swartzenberger—as did Ann Connolly, who conducted the defense for him. Mr. Lawrence claims under a conveyance from Mrs. Ann Connolly, and both are bound by the judgment against Swartzenberger.
Order affirmed.