de McKinlay v. Tuttle

By the Court, Erodes, J. : The appeal is taken by defendants Guadalupe Castro, Simeon Castro, and Joaquin Castro, and they appeal from the judgment alone. The record in this Court consists of the complaint, summons, Sheriff’s return of service, answer of the above named defendants, and the judgment. The judgment for damages is clearly erroneous, for no damages are alleged in the complaint. The defendants—the Castros—are not named in the complaint, summons, or Sheriff’s return, but long prior to the rendition of the judgment, they filed their answer, and it is recited in the judgment that they were duly served with the summons; that they demurred to the complaint, and that the demurrer having been overruled, they answered the complaint. The question is whether a judgment can be sustained against persons who are not mentioned in the complaint. A controversy has arisen between the parties, as to whether they are entitled to read, in connection with the record now before us, the record in the former appeal. (See 34 Cal. 235.) That record may be looked into for the purpose of ascertaining what facts were before this Court on the former appeal, so as to see the application of the rule, that the decision then made is the law of the case. In other words, we must examine the former record, in order to ascertain what was then decided. The principles and rules then announced would be recognized as the law of the case on this appeal, if the same questions were now again presented on the same state of facts, but the questions then presented do not now arise. The facts presented on that appeal—or more generally stated, the former record—cannot, except [577] upon the stipulation of parties, be added to, and read as a part of, the record now before us. The plaintiff invokes the doctrine announced in Hahn v. Kelly, 34 Cal. 391, and kindred cases, following the authority of that case; but it has no application here, for in those cases the attack was-collateral, while here it is direct. In order to maintain a judgment when it is directly attacked, as in this case by an appeal, it is requisite that the record should show that the Court had jurisdiction of the person against whom the judgment was rendered, and that the judgment was warranted by the allegations of the pleadings of the party in whose favor it was rendered. We refer only to the judgments on the merits. In determining that question, recitals which may be found in the judgment cannot be regarded, for the question is whether the record sustains the júdgment. Such recitals, therefore, will not be accepted-as a substitute for the summons and the proof of service; and, indeed, it would be as illogical so to do, as to receive such recitals in the stead of the allegations of the pleadings. It will not be doubted that in the action of ejectment, it is an indispensable averment of the complaint that the defendant ousted the plaintiff, and still withholds the possession of the premises; and it is equally clear, that if the plaintiff brings in a new party as a defendant, the ouster and withholding of the possession by him must be averred, otherwise no judgment can be taken against him for the recovery of the possession of the premises. We can see no reas'on why the same rule will not apply when the names of defendants are ascertained, who have been sued by fictitious names. It must be alleged that they are guilty of the ouster, otherwise there will be no relation between the complaint and the judgment. When the names of the defendants, who are sued by fictitious names, are ascertained, whether [578] before or after service of process, the complaint must be amended by inserting their true names. Section sixty-nine of the Practice Act, provides that when the true name is discovered the pleading may be amended, but in our judgment the pleading must be amended, if it is intended to bind such persons by the judgment. There is as little room for question that such is the proper course, as there would be in a case whore the plaintiff discovers that, by mistake, he has suer", the defendant by a wrong name. When the defendant::, who are sued by fictitious names, are served with process (as is claimed by the plaintiffs here), appeal- and answer the complaint, their answer is not a waiver of an amendment of the complaint, describing the defendants by their true names. The averment that John Doe ousted the plaintiffs from the possession of the premises, will not support a judgment that the plaintiffs recover the possession from Castro. The recovery must be according to the allegations of the complaint. Judgment reversed and cause remanded. Mr. Justice Wallace, being disqualified, did not sit in this case.