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Brock v. Martinovich

55 Cal. 516 Court Cal. Docket No. 6,397 English

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p. 516
[In Bank.
No. 6,397.]
BROCK v. MARTINOVICH et al.

Headnote

Fictitious Name — Service of Amended Complaint—Judgment by Default—Practice.—Where a complaint is amended (under"§ 474 of the Code of Civil Procedure) by inserting the true name of a defendant, sued by a fictitious name, service of a copy of the amended complaint on such defendant is not required, nor is he entitled to ten days in which to answer. Section 472 of the Code of Civil Procedure has no application to such a case.
Appeal from a judgment for the plaintiff, in the Twenty-third District Court, City and County of San Francisco. Thornton, J.
The facts are stated in the opinion.
A. D. Splivalo, for Appellant.
J. M. Wood, for Respondent.

The defendant Splivalo was sued by the fictitious name of John Doe. Both he and his codefendant were regularly served with process, and both failed to appear in the cause. The default of each was duly entered, and afterward, the case coming on regularly to be heard, the plaintiff’s attorney asked and obtained leave of the Court to insert in the complaint the true name of Splivalo in lieu of the fictitious name by which he was sued; and thereupon, the Court, after hearing the necessary proof, gave judgment in accordance with the prayer of the complaint.

Splivalo appeals from the judgment, claiming that he was entitled to service of the complaint after his true name had been inserted, and to ten days thereafter within which to answer. No authority has been cited in support of his position, except § 472 of the Code of Civil Procedure, which, ive think, has no application here. There is no merit in the appeal.

Judgment affirmed.

McKee, J., dissented.

Statutes and regulations cited