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CHAPTER IV.

PLAINTIFF'S PROCEEDINGS RELATING TO JURISDICTION.

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I. SUMMONS AND NOTICES CONNECTED THEREWITH.
II. PERSONAL SERVICE AND PROOF THEREOF.
III. SUBSTITUTED SERVICE WITHIN THE JURISDICTION.
IV. SERVICE BY PUBLICATION AND MAILING.
V. EXAMINATION OR DISCOVERY TO ASCERTAIN UNKNOWN OB ADDI-

TIONAL DEFENDANTS.

AND

IN

UNKNOWN

OR

VI. AMENDING;
BRINGING

ADDITIONAL DE-
FENDANTS.
VII. REMOVAL OF CAUSE AT PLAINTIFF'S INSTANCE.
VIII. DISCONTINUANCE BEFORE DEFENDANT'S APPEARANCE.

ARTICLE I.

SUMMONS AND NOTICES CONNECTED THEREWITH.

1. General object and contents. 2. Parties' true names needed. 3. - abbreviations and initials. 4. reputed name. 5. married woman. 6. — official or special capacity. 7. - unknown names. 8. unknown persons. 9. partnership. 10. - corporation. 11.

- association or joint-stock com

pany.
12. Infants.
13. Mode of objecting to error in

14. Defects in summons.
15. Waiver,
FORMS.
(365) Summons.
(366) Notice served with summons

when complaint is not
served, in action for money

demand on contract. (367) Indorsement on copy sum

mons for penalty served

without complaint. (368) Notice of object of action and

no personal claim.

name.

1. General object and contents.]— The object of the summons, like that of the writ at common law and the subpæna in equity, is to give to each defendant unmistakable notice that he is sued, and how, and where.

The purposes of justice require that it should intelligibly inform him of the court where trial is to be had, of the names of those who sue him, and of those who are sued with him,6o inform him or give him the means of obtaining information as to the

60 This is not required under all systems. Thus, in the United States court in equity, separate subpænas may be taken, except as a gainst husband and wife, and the defendant may be left to ascertain who are his co-defendants from the plaintiff's pleading. l'. S. Eq. Rule 12.

nature of the charge, and of what he must do, and within what time, to avoid a default; and warn him that judgment will go against him if he makes default. Lastly, this notice must be authenticated by a proper signature.

These general requisites are common to all process for the commencement of an action; and the courts enforce with strictness a substantial fulfillment of them.

2. Parties' true names needed.]—As the object of suing is to get a judgment such as will unquestionably bind defendant and his property, it is important that whatever doubt there may be about the true name of a party defendant should be discovered and removed as soon as may be. Hence, even though defendant is familiarly called by a name variant from his true name, or has so signed the contract on which he is sued, the true name should be used in the title of the cause, and ordinarily it may be reserved for allegations in the complaint to explain, and the evidence at the trial to establish, the identity of person. But in those rare cases where a person is known by two different names to such an extent (as, for instance, where record title exists in both names) as to make it important that the judgment itself should bear both, he should be designated by both, as, John Doe, otherwise known as Richard Roe; or, Jane Doe, falsely called Jane Roe. 61

If the true name cannot be accurately ascertained at the outset, plaintiff may proceed upon such information as he has, mindful, however, of the necessity of amending if there be any discrepancy between the name on the record and the right name.

If, however, the real defendant was fairly apprised by the summons and complaint, or other papers, served upon him that he is the intended defendant, a mistake in the name does not deprive the court of jurisdiction, and an amendment may be granted, ex parte upon his default, substituting the correct name.

61 See Isaacs v. Mintz, 16 Daly, 468, 12 N. Y. Supp. 276; Anderson v. Horn, 23 Abb. N. C. 475, 10 N. Y. Supp. 8.

62 Stuyvesant v. Weil, 167 N. Y. 421 (foreclosure of mortgage upon property of which the defendant incorrectly named was the owner, complaint having been served with the summons, held, that an error in naming defendant as Mary J. Stockton instead of Emma J. Stockton did not deprive the court of jurisdiction, and an amendment after default was properly granted ex parte inserting true name.) Holman v. Goslin, 63 App. Div. 204, 71 N. Y. Supp. 197 (defendant's name spelled “ Joslin” in summons and complaint, but correctly spelled in order of arrest served at same time; held, that jurisdiction of defendant was acquired.)

3. -- abbreviations and initials. ].In abbreviation of a given name, which is clear and unmistakable, such as Wm. for William, will not vitiate,63 but is extremely undesirable.

Initials are not sufficient to represent the given name of a party,64 but where one is used the defect can be cured by amendment if there is no question about identity; and may even be disregarded if it be clear that no one was misled.65

The middle name or its initial is not vitally material if there is no question as to identity,ce but is important practically to facilitate identification.

4. - reputed name.]-A person, whether having a legal name or not,ø7 may acquire a name by repute,68 and may sue and be sued by the reputed name, subject to the right of the defendant to take advantage of a misnomer.

5. married woman.

A married woman need not be so indicated in the summons.

Even if she has been divorced she should be designated by the surname acquired by marriage, unless she has resumed her former name, or has acquired another name by repute.69

6. official or special capacity.] - Where a party sues or is sued in an official, or quasi official or a representative capacity, the proper addition indicating that he is made a party in that capacity should be inserted, as : John Doe, as supervisor of the town of Doeville; Joe Doe, as executor of the will of Richard Roe.70

The word as in this connection is material, because it signifies

63 See Henry v. Armitage, 12 L. R. (Q. B. Div.) 257, 50 L. T. R. (N. S.) 4.

64 Sherrod v. Shirley, 57 Ind. 13; Webber 4. Bolte, 51 Mich. 113, 16 N. W. Rep. 257; (S. P., Frank v. Levie, 5 Robt. 600.) If the contract is signed with the initial only of the first name, the party may be so sued. Farmers' Nat. Bank t. Williams, 9 N. Y. Civ. Pro. 212.

65 Gottlieb v. Alton Grain Co., 87 App. Div. 380, 84 N. Y. Supp. 415; afrd, 181 N. Y. 563; Grant 1. Birdsall, 48 N. Y. Super. Ct. 427.

66 But if an error in this respect be discovered, it is better to amend, as the variance would be enough to prevent the usual presumption of identity.

67 As in the case of a bastard,

68 12 Abb. N. C. 303; Linton v. First Nat. Bank of Kittanning, 10 Fed. Rep. 894; abst. s. c., 13 Repr. 487.

69 12 Abb. N. C. 303; Fendall v. Goldsmid, 2 L, R. Prob. Div. 263.

70 For this rule as to public officer's official description, see N. Y. Code Civ. Pro., g 1929.

that he is not merely so described for the purpose of ideatification, but that he sues or is sued in that capacity, and that judgment should go accordingly."

If he sues or is sued both in his own right and officially, the fact should be indicated as thus: “ John Doe, individually, and as executor of Richard Roe.72

These rules were formerly strictly insisted on, but the omission to comply with them is not now necessarily fatal to the claim that the party is named either individually or in a representative capacity, provided that the complaint is served and the capacity in which the party is intended to sue or be sued is clear from its allegations." A misdescription in this respect is amendable. The court has power to strike out the addition of the official capacity and permit the action to continue against the defendant individually, where the facts set forth show only an individual liability.75

7. unknown names.] — Ignorance of a defendant's name does not prevent the bringing of an action. He must be designated by so much of his name as is known, or if none be known, by a fictitious name, adding in either case a description identifying the person intended. When the true name is discovered it is irregular to continue proceedings in the fictitious name.78

71 See Merritt r. Seaman, 6 N. Y. 168; Litchfield v. Flint, 104 id, 543. 72 See N. Y. Code Civ. Pro., § 1815, permitting such joinder.

73 Stilwell v. Carpenter, 2 Abb. N. C. 238; Alker v. Rhoads, 73 App. Div. 158, 76 N. Y. Supp. 808; Genet v. De Graef, 27 App. Div. 238, 50 N. Y. Supp. 442; Albany Brewing Co, v. Barckley, 42 App. Div. 335, 59 N. Y. Supp. 65.

74 McElwain v. Corning, 12 Abb. Pr. 16.

The omission of the word “as” from the summons, before the official titles of defendants (who were also mayor, common council, etc., of a city, and averred in the complaint to be such), held, to indicate that they were sued as individuals, and that the addition of their names of office was but descriptio persone, the scope and averments of the complaint also harmonizing with the omission. Bennett v. Whitney, 94 N. Y. 302, distinguishing Beers v. Shannon, 73 N. Y. 292.

75 Boyd v. U. S. Mtge. & T. Co., 84 App. Div. 466, 82 N. Y. Supp. 1002. 76 Weil r. Martin, 24 Hun, 645.

77 N. Y. Code Civ. Pro., § 451. It is not enough to use the name "John Doe"; the Code permission requires that plaintiff should intend to join some definite person, and designate him by a description as well as a fictitious name. See Town of Hancock r. First Nat. Bank, 93 N. Y. 82; Hochman 1. Hauptman, 76 App. Div. 72, 78 N. Y. Supp. 659.

If he bears any relation to a party fully named, he may be identified by stating that relation; if he bears any relation to the property which is the subject of the action, he may be identified by that, as for instance, the occu

66

78 N. Y. Code Civ. Pro., $ 451; People ex rel. Maibach v. Dunn, 38 App. Div. 112, 56 N. Y. Supp. 627.

8. unknown persons.] — There is a class of cases where the name may be known in part or in full, but the existence of a living person corresponding to it is unknown, as in the case of possible heirs of a person who is supposed to be or who may be dead, or unknown owners of property in a proceeding directly affecting property. In such cases the better way is not to resort to fictitious names, unless the number of such persons is known, but to designate them in the summons by their class description, as “the unknown persons who are or may be heirs of John Doe, deceased.” 19 Adding “ if any” does not vitiate. So

9. — partnership. ] To join a partnership either as plaintiff or defendant, the names of all the partners should be given, not the firm name, $i except in those jurisdictions where the statutes allow suing them by the firm name, or where the partnership, by

pant of premises” designated. Any designation within the pleader's power which ati'ords reasonable means of identification is enough. This is according to the English practice. In one case (2 Sim. & Stu. 188) where a babe was a necessary party, the father and mother refused to have her baptized, in order to embarrass the issue of process against her. In that case the form of description approved by the vice-chancellor, was to designate her in the subpana as the youngest female child of " her father and mother. In one case in this State, the owner of a seine in the Hudson river sued the skipper of a sloop for running over his net, and Harris, J., said that the designation of defendant as “the man in command of the sloop Hornet," would be good. Pindar v. Black, 4 Ilow. Pr. 95.

In any case of using a partial or fictitious name, the summons and complaint should allege the ignorance of the true name. Gardner v. Kraft, 52 How. Pr. 499.

It is also irregular to name a defendant by his last name only, leaving a blank instead of inserting a fictitious christian name and a description iden. tifying him. Von llatten v. Scholl, 1 App. Div. 32, 36 N. Y. Supp. 771 (the irregularity is amendable). Hilton v. Sinsheimer, 5 N. Y. Civ. Pro. 355 (a description need not be added in an ordinary action at law, where personal service is made).

79 See N. Y. Code Civ. Pro., § 451. Lenehan 1. College of St. Francis, 30 Misc. 378, 63 N. Y. Supp. 1033 ; aff'd, 51 App. Div. 535, 64 N. Y. Supp. 868. The complaint in such case should allege the ignorance and disclose the plaintiff's intent to make them parties. Moir t. Flood, 66 App. Div. 544, 73 N. Y. Supp. 364. See also Allen 1'. Smith, 25 Ark. 495.

80 Abbott ». Curran, 98 N. Y. 665. It is improper to name a party as if living, and at the same time join his personal representatives as unknown persons. Tyrrell 1'. Seaman's Bank, 57 App. Div. 381, 68 N. Y. Supp. 275.

81 An action by an individual on a contract running to a partnership may be dismissed at the trial. If the fact be that the individual did business under that name, the complaint is insufficient without amendment. Weichsel r. Spear, 47 N. Y. Super Ct. 223. S. P., where defendant was sued on a partner. slip obligation. Wildrick 1. Hershem, 16 App. Div. 515, 89 N. Y. Supp. 78. An amendment was permitted at the trial. striking out the words “& Son and substituting the son's name. Bannerman v. Quackenbush, 11 Daly (N. Y.),

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