CHAPTER XI.

FORMAL PARTS OF PLEADINGS.

§ 101. Introduction.-Under this head will be treated briefly the caption, commencement, and prayer. The verification and signature will be made the subjects of the next chapter.

§ 102. Caption. The caption of a pleading consists: 1. Of the name of the court; 2. Of the name of the state and county in which the action is brought; 3. Of the names of the parties plaintiff and defendant. In the forms given in this work the word "caption" will be understood to include both the venue of the action and the names of the parties.

The caption is an esssential part of a pleading, the codes generally requiring, with reference to the complaint, that it shall contain "the title of the action, the name of the court and county in which the action is brought, and the names of the parties to the action." 2

§ 103. Name of court.-It will be seen from this that every complaint must be entitled in the proper court, and that if no court is named no cognizance need be taken of the action. But this provision is to be reasonably construed, and the rule that the court must disregard any error or defect which does not affect the substantial rights of the parties applies to a misnomer in entitling the court upon the face of the complaint, while the cover of the complaint, the summons, and a writ of injunction contain the true name of the court."

1 Estee's Pl. & Pr., § 206.

2 Cal. Code Civ. Proc., § 426; Or. B. & C. Codes, § 67. And see N. Y. Code Civ. Proc., § 481; Ind. Code Civ. Proc., § 341.

3 Ward v. Stringham, 1 Code Rep. 118. And see Garretson v. Hays, 70 Iowa, 19, 29 N. W. 786.

4 Cal. Code Civ. I.oc., § 475. 5 Ex parte Fil Ki, 79 Cal. 584, 21 Pac. 974. See, also, Robinson v. Peru

etc. Wheel Co., 1 Okla. 140, 31 Pac. 988; McLeran v. Morgan, 27 Ark. 148. Under the New York practice, the service of summons being the commencement of an action, it is held that where the summons and complaint are served together, the omission of the name of the court from the complaint is a mere technical irregularity. This accords with the rule laid down in Ex parte Fil Ki, supra.

§ 104. Venue. The name of the county, or, in other words, the venue, is technically necessary under the code provisions we are considering, and when it is once properly laid all matters following refer to it. The proper mode is to lay the venue in the title, and where this is done it is a sufficient designation of the county. in which the plaintiff desires that the trial be had. It has been held that a venue laid in the body of a complaint is sufficient;" and that where it is so laid the name of the county stated in the margin may be rejected as surplusage. The entire omission of any venue may, of course, be taken advantage of by demurrer.

§ 105. Names of parties.-A person's legal name is made up of his Christian name and his surname.10 The law recognizes but one Christian name, and intervening initials are no part of the name. This rule is subject to qualification, however, in that a middle initial becomes material where the name is designated only by two initials in connection with the surname.12 A Montana case has held that the designation of a Christian name by initials is improper;13 or where it appears that, with the exception of such middle name or initial, two persons have each the same name, and can only be distinguished by the middle name or initial of each." It seems that the word "junior" is no part of a name;15 nor the word "senior." These are mere unnecessary additions and have no place in a pleading. But as said by Mr. Estee, "We do not see why the term 'junior' or 'senior' may not properly be used in a complaint for the purpose of more clearly identifying the perThis addition would seem to be equally as necessary as

son.

16

6 Estee s Pl. & Pr., § 216; Cocke v. Kendall, Hempst. 236, Fed. Cas. No. 2929b.

7 Loehr v. Latham, 15 Cal. 418; Tappan v. Powers, 2 Hall, 301; Slate v. Post, 9 Johns. 81; Capp v. Gilman, 2 Blackf. (Ind.), 45; Davison v. Powell, 13 How. Pr. 287; Hughes v. Windpfennig, 10 Ind. App. 122, 37 N. E. 432; Dollman v. Munson, 90 Mo. 85, 2 S. W. 134.

8 Dwight v. Wing, 2 McLean, 580. County Commrs. v. Wise, 71 Md.

43, 18 Atl. 31, 1 Chit. Pl. 274.

10 Euewold v. Olsen, 39 Neb. 59, 42 Am. St. Rep. 557, 57 N. W. 765, 22 L. R. A. 573.

11 Garwood v. Hastings, 38 Cal. 216; People v. Smith, 103 Cal. 563; 37 Pac. 516; People v. Cook, 14 Barb. 261; Beattie v. National Bank, 174 Ill. 571, 66 Am. St. Rep. 318, 51 N. E. 602, 43 L. R. A. 654.

12 Houghton v. Tibbetts, 126 Cal. 57, 58 Pac. 318; State v. Higgins, 60 Minn. 1, 51 Am. St. Rep. 490, 61 N. W. 816, 27 L. R. A. 74.

13 Wiebbold v. Hermann, 2 Mont. 610.

14 State v. Higgins, 60 Minn. 1, 51 Am. St. Rep. 490, 61 N. W. 816, 27 L. R. A. 74.

15 San Francisco v. Randall, 54 Cal. 408; People v. Cook, 14 Barb. 261. 16 Estee's Pl. & Pr., § 211.

the middle name or initial, where there are two persons who would otherwise be indistinguishable. It has been held to be no ground of demurrer that the Christian name of one of the plaintiffs does not appear."

Obviously the code provisions requiring that the names of the parties be stated requires that the caption contain the names of all the parties, plaintiff and defendant. If, however, some are named in the title, and all are correctly named in the body of the pleading, it will be sufficient.18 It is hardly necessary to say that when the names of the parties have once been stated in the pleading they may thereafter be designated simply as "plaintiff" and "defendant."

In designating the parties to an action, no title or other appellation is necessary, except where suit is brought by or against a person in his official capacity. In such a case it is proper that the character of the party be indicated.19 Where, however, there is no such reason for inserting an official title it will be treated as surplusage.20 So the mere fact that the words "deputy sheriff” followed the defendant's name in the caption of a complaint was held not to make the action one against him as deputy sheriff. In such a case the word "as" not preceding the designation of official capacity, the presumption is that the defendant is sued as an individual, and the words "deputy sheriff" are merely descriptio persona.2 And when a complaint shows a cause of action in favor of the plaintiff, not in his representative but in his individual capacity, the descriptive words may be rejected, leaving the action to stand as one brought in the individual capacity of the plaintiff.22 It may be proper to remark here that in an action against an estate an executor can be sued only in his representative capacity, and a complaint brought against him in such capacity cannot be amended so as to show an action against him

21

17 Nelson v. Highland, 13 Cal. 74; Andrews v. Wynn, 4 S. Dak. 42, 54 N. W. 1047.

18 Estee's Pl. & Pr., § 211; Hill v. Thacter, 2 Code Rep. 3, 3 How. Pr. 407; Collins v. Lightle, 50 Ark. 97, 6 S. W. 596.

19 Morrell v. Morgan, 65 Cal. 575, 4 Pac. 580; Sweeney v. Stanford, 67 Cal. 635, 8 Pac. 444; More v. Calkins, 85 Cal. 177, 24 Pac. 729; Hill v. Thac

ter, 2 Code Rep. 3, 3 How. Pr. 407; Berolzheimer v. Strauss, 7 N. Y. Civ. Proc. Rep. 225.

20 Sheldon v. Hay, 11 How. Pr. 15; Root v. Price, 22 How. Pr. 372; Butterfield v. Macomber, 22 How. Pr. 150. 21 Grieg v. Clement, 20 Colo. 167, 37 Pac. 960.

22 Litchfield v. Flint, 104 N. Y. 543, 11 N. E. 58; Thompson v. Whitmarsh, 100 N. Y. 35, 2 N. E. 273.

in his individual capacity, as such amendment would be an entire change of the party defendant and a different suit.23

Where one of the defendants in an action is described by name in the summons, with the appended words "administrator with the will annexed," etc., and the summons refers to the complaint, in which it is alleged that such defendant, "as administrator," etc., has or claims an interest, the summons is not defective because it does not show that the administrator was sued in his representative capacity.24

§ 106. Mistakes in names. While the names of the parties must be correctly stated, a mistake in a name does not affect the pleading or the merits of the action. The mistake may be corrected upon motion of a party or by the court of its own motion.25 It is not every mistake in the name of a party that will be regarded as material. The omission in a complaint and proceedings on attachment against a corporation defendant of the word "company" will not affect the attachment lien, and the error is waived by an appearance and answer of the corporation in its true name and without objection,26 and the general rule is that a misnomer must be pleaded in abatement, or it is waived;27 if the real party in interest is sued and served with process by the wrong name, and does not plead the misnomer, he will be bound by the judgment or decree rendered.28

The doctrine of idem sonans renders many slight misnomers immaterial. Under this doctrine, if two names may be sounded alike without doing violence to the power of the letters found in the variant spelling, the difference is immaterial.29 The question whether one name is idem sonans with another is not a question of spelling, depending less upon the rule than upon the usage.30

23 Sterrett v. Barker, 119 Cal. 492, 51 Pac. 695.

24 Ryan v. Holliday, 110 Cal. 335, 42 Pac. 891.

25 Barnes v. Perine, 9 Barb. 202; Bank of Havana v. Magee, 20 N. Y. 356; Elliott v. Hart, 7 How. Pr. 25; Beavers v. Baucum, 33 Ark. 722.

26 Hammond v. Starr, 79 Cal. 556, 21 Pac. 971.

27 Young v. South T. I. Co., 85 Tenn. 189, 4 Am. St. Rep. 752, 2 S. W. 202.

28 Pennsylvania Co. v. Sloan, 125 Ill. 72, 8 Am. St. Rep. 337, 17 N. E. 37.

29 Hall v. Rice, 64 Cal. 443, 1 Pac. 891; McDonald v. Swett, 76 Cal. 257, 18 Pac. 324; Galliano v. Kilfoy, 94 Cal. 86, 29 Pac. 416; Donohoe-Kelly Banking Co. v. Southern Pacific Co., 138 Cal. 183, 94 Am. St. Rep. 28, 71 Pac. 93; Miltonville etc. Bank v. Kuhnle, 50 Kan. 420, 34 Am. St. Rep. 129, 31 Pac. 1057.

30 Galliano v. Kilfoy, 94 Cal. 86, 29 Pac. 416.

The question is ordinarily one for the jury, especially where the name in question is foreign.31

§ 107. Fictitious names.-When the plaintiff is ignorant of the name of a defendant he must state that fact in the complaint, and such defendant may be designated in the pleading or proceeding by any name, and when his true name is discovered the pleading or proceeding must be amended accordingly.32 It is to be noticed under this rule that when the true name is ascertained the pleading must be amended accordingly; otherwise no judgment can be taken and enforced against the party thus sued.33 And where service has been made upon persons alleged to be sued under fictitious names, an order is properly made setting aside the service, where the plaintiff does not, in response to the motion, offer to have the true names inserted. However, a failure to substitute the true name of a defendant will not now warrant a reversal of the cause, notwithstanding section 474 of the Code of Civil Procedure of California.35 Until substitution is made of the true name of a defendant served with summons under a fictitious name, the rights of other parties to the action will not be affected by such service or by his appearance in the suit.36

84

As has already been said, a person's legal name is made up of his given name and his surname, and to be ignorant of either is to be ignorant of such person's name within the meaning of the rule we are considering.37 A defendant sued by a fictitious name is not entitled to have the service of summons set aside and the action dismissed upon showing that the plaintiff could have ascertained his true name had he exercised reasonable diligence in searching the public records of the county.38

A defendant sued by a fictitious name is a party to the action from its commencement, and an amendment to the complaint by inserting the true name does not change the cause of action.39

81 People v. Fick, 89 Cal. 144, 26 Pac. 759; State v. Thompson, 10 Mont. 561, 27 Pac. 349.

82 Cal. Code Civ. Proc., § 474; N. Y. Code Civ. Proc., § 451.

33 McKinley v. Tuttle, 42 Cal. 577; Campbell v. Adams, 50 Cal. 205; Baldwin v. Morgan, 50 Cal. 585; Jones v. Pearl Min. Co., 20 Colo. 417, 38 Pac. 700.

34 Rosencrantz v. Rogers, 40 Cal. 489.

85 Blackburn v. Bucksport, 7 Cal. App. 649, 95 Pac. 668.

36 Bachman v. Cothry, 113 Cal. 499, 45 Pac. 814.

37 Euewold v. Olsen, 39 Neb. 59, 42 Am. St. Rep. 557, 57 N. W. 765, 22 L. R. A. 573.

88 Irving v. Carpentier, 70 Cal. 23, 11 Pac. 391.

89 Farris v. Merritt, 63 Cal. 118.