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by a supplemental complaint, a judgment in favor of the transferee will be reversed if there be no order of the court substituting him as in the action.26 If a party to an action die after the rendition of judgment, and before filing and serving notice of appeal, the authority of the deceased's attorney to act terminates, and any subsequent action of the attorney, before substitution, will not bind the representatives of the deceased, or any other party in interest. Where the court has acquired no jurisdiction of the administrator of an estate, or of the subject-matter of the litigation, it has no power to substitute another party to the action, and a motion for that purpose will be overruled.28

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In case this order is made without notice, as it often is in practice, the form should be varied accordingly, and the executor notified of its entry; which is generally done by serving a copy of the order on him. The correct practice is to enter an order of substitution of a party in the minutes as a distinct order made before judgment.29

§ 66. Substituting true name.-When plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, and that defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly.30 But a failure to substitute the true name of a defendant will not warrant a reversal of the cause.31

§ 67. Substitution of papers.-If an original pleading or paper be lost, the court may authorize a copy thereof to be filed and used instead of the original.32 There can be no judgment without pleadings on file, original or substituted.33

§ 68. Lost pleading.-If a pleading be lost, it can only be supplied by motion based on affidavits showing what the lost pleading contained; and a service of personal notice of motion on the opposite party must be sufficiently explicit in form to

26 Lowell v. Parkinson, 4 Utah, 64, 6 Pac. 58. Compare Thomas v. Morris, 8 Utah, 284, 31 Pac. 446.

27 Coffin v. Edgington, 2 Idaho, 595, 23 Pac. 80.

28 McCormick Harvesting Co. V. Snedigar, 3 S. Dak. 625, 54 N. W. 814.

29 Cockrill v. Clyma, 98 Cal. 123, 32 Pac. 888.

30 Cal. Code Civ. Proc., § 474. 31 Blackburn v. Bucksport, 7 Cal. App. 649, 95 Pac. 668.

32 Cal. Code Civ. Proc., § 1045. 33 Grimison v. Russell, 11 Neb. 469, 9 N. W. 647.

enable him to controvert the affidavits submitted.34 Substitution of pleadings or papers in a case is always within the discretion of the court; and no notice of the motion to apply for it need be given when the notice of it can be of no use.3

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FORMS IN SUBSTITUTIONS.

§ 69. Petition by receiver to be substituted as a party to a pending action,

[TITLE.]

Form No. 1.

To the ... court of . . . county:

The petition of R. C. respectfully alleges:

1. That by an order duly made and entered in an action pending in the above-entitled . . . court, on the . . day of . . . 19.., wherein A. B. is plaintiff, and C. D. defendant, your petitioner was appointed receiver of [state what he was appointed receiver of and his duties generally] which trust he accepted, duly qualified under and is now engaged in the duties thereof.

2. That the action above entitled was pending at the date of such appointment, and is at issue, and the object of the same is [here state the object of the action in general terms].

3. That it is necessary for the proper protection of the interests committed to your petitioner as such receiver that he be substituted for C. D. in said action to defend the same.

Your petitioner, therefore, prays that he be substituted in the place of C. D. as defendant in the above entitled action, to defend the same.

[DATE.]

[Add verification as in case of a pleading.]

§ 70. Notice of motion to substitute officer's successor.

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R. C.

Please take notice that on the affidavit of A. B., of which a copy is herewith served, the undersigned will move the court, at a special term thereof, to be held at . . ., on the . . . day of 19.., at . . . o'clock in the forenoon, or as soon thereafter as counsel can be heard, to substitute W. X., supervisor of the town

34 People v. Cazalis, 27 Cal. 522.

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35 Benedict v. Cozzens, 4 Cal. 381.

of... [or other official designation], in the place of Y. Z., as plaintiff [or defendant] in this action; or for such other relief as may be just. [DATE.]

§ 71. Affidavit therefor.

Form No. 3.

[SIGNATURE.]

M. N., being duly sworn, says that he is the attorney of the plaintiff [or defendant] in this action; that on the . . . day of . . last, W. X., of . . ., was duly elected [or appointed] to the office of . of the [town of . . ., in the] county of . . in place of the defendant Y. Z.; and that on the . . . day of last, the said W. X. entered upon the duties of said office, and still holds the same.

[JURAT.]

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[SIGNATURE.]

On reading and filing the affidavit of M. N. [and proof of due service of notice], and on motion of M. N., after hearing O. P. [or no one appearing] in opposition;

Ordered, that W. X., of . . ., [designating official character], be substituted as the [defendant] herein, in place of Y. Z., (and he is hereby required to appear and answer within . . . days after service of a copy of this order).

§ 73. Affidavit for substitution by assignee of plaintiff.

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I. That on or about the . . . day of ..., 19.., one A. B. commenced an action in this court against one C. D. for [here state the cause of action]; that issue was joined therein by the service and filing of the defendant's answer on the . . . day of 19..; that said cause is upon the calendar of this court awaiting trial.

II. That on the . . . day of..., 19. ., and while said action was still pending, said A. B., plaintiff in said action, duly assigned

and transferred the [promissory note] in the complaint mentioned, for a valuable consideration, to affiant, who is now the owner and holder thereof [or sold and conveyed to affiant all his right, title, and interest in and to the real property in controversy in this action, and that affiant is now the owner thereof].

Wherefore affiant prays that he may be substituted as plaintiff in said action in place of said A. B., and that said action may be continued in his name, and that he may have such other relief as may be just.

[JURAT.]

[SIGNATURE.]

§ 74. Affidavit by husband after marriage of female plaintiff to continue cause in joint names of husband and wife.

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II. That pending said action, and on the . . . day of . . 19., the said A. B. was married to this affiant E. F., who thereby became, and now is, a necessary party plaintiff herein, as he is advised and believes.

Wherefore affiant prays the order of this court that said action may be continued by said A. B. and this affiant jointly as plaintiffs, against C. D., and that they may have leave to amend the complaint as they may be advised, and such other relief as may be just.

[JURAT.]

[SIGNATURE.]

§ 75. Order by consent substituting administrator as plaintiff, without prejudice to proceedings.

[TITLE.]

Form No. 7.

On reading and filing the affidavit of E. F., showing the death of A. B., the plaintiff in the above-entitled action, and the granting of letters of administration to P. Q., by the probate court of the county of . . ., and on motion of E. F., the plaintiff's attorney, the defendant's attorney consenting thereto :

It is ordered that this action be and the same is hereby revived. and continued in the name of the said P. Q., administrator of the estate of A. B., deceased, as plaintiff; and that the said adminis

trator be and he is hereby substituted as plaintiff in the place and stead of the said A. B., deceased, and that such revivor and continuance be without prejudice to any of the proceedings already had in this action.

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§ 76. Affidavit by defendant to have plaintiff's executor substituted.

[TITLE.]
[VENUE.]

Form No. 8.

S. T., being duly sworn, deposes and says, I am the defendant in the above-entitled action:

I. That on or about the . . . day of ..., 19., the abovenamed A. B. commenced an action in this court against this affiant, for [state cause of the action and condition, as 'in form 5, and if defendant has asked affirmative relief in his answer, set it forth].

II. That affiant is informed and believes that A. B., the abovenamed plaintiff, died on or about the . . . day of . . ., 19.. last, having first made and published his last will and testament in due form of law, by which, among other things, he appointed P. Q. his executor; that said will has been duly admitted to probate in the probate court of the county of .., and letters testamentary issued to the said P. Q., on the . . . day of . . ., A. D. 19., and he has duly qualified and entered upon his duties as such executor, but to the best of affiant's information and belief, has hitherto failed to make any application to have the aboveentitled action continued by him as plaintiff.

Wherefore affiant prays that the above-entitled action may be continued in the name of said executor, or that the complaint herein be dismissed, or for such other order as may be just. [JURAT.]

[SIGNATURE.]

§ 77. Notice of motion on behalf of defendant for substitution of plaintiff's executor.

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Please take notice that on the affidavit, a copy of which is herewith served, and the papers on file in this cause, the under

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