
    Matilda Schoellkopf, Plaintiff, v. Jacob Ohmeis, Defendant.
    (New York Common Pleas—Special Term,
    February, 1895.)
    A judgment against a party sued by a.wrong name and not appearing in the action is a nullity, incapable of amendment.
    Motion to amend process and proceedings nunc pro time by changing the name of the defendant.
    
      Howe do Hummel, for the motion.
    
      Edward Grosse, contra.
   Pryor, J.

Served with a summons against Jacob Ohmeis, Joseph M. Ohmeis failed to appear in the action; and upon his default and an inquisition of. damages judgment has been entered against Jacob Ohmeis. The plaintiff moves to amend the process and proceedings, nune pro tune, by substituting the name Joseph M. Ohmeis for Jacob Ohmeis.

. It is not disputed that Joseph M. Ohmeis is the person against whom it was intended to prosecute the action.

The precise question in controversy, whether after judgment an amendment may be allowed so as to conform the process and proceedings to the real name of a party sued by a wrong denomination, and though served not appearing in the action, seems not to have been determined by any court of this state. In Tasker v. Wallace, 6 Daly, 364, it is not shown but that the defendant entered appearance; and by all authorities an appearance corrects the irregularity. For if the defendant fail to plead the misnomer he waives it, or if he pleads it he must give the true name,' and thereupon an amendment is of course.

” • It is the law of this state that “ service of summons upon a party by a wrong name does not give the court jurisdiction over his person, and his appearance cannot be compelled.” Farnham v. Hildreth, 32 Barb. 277, 279. By necessary consequence, if he do not appear a judgment against him in .such name is a nullity. Moulton v. De ma Carty, 6 Robt. 470, 477; Waterbury v. Mather, 16 Wend. 611, 613; Griswold v. Sedgwick, 6 Cow. 456.

• In some jurisdictions the rule may be otherwise (First Nat. Bank v. Jaggers, 31 Md. 38); but I rm concluded by our own adjudications.

Joseph M. Ohmeis having never been in- court, and so the-judgment a nullity, there is nothing to amend. A thing void is a thing irreparable ; and no energy in the law suffices ■ to make something of nothing.

Again, Joseph M. Ohmeis, not .being obliged to respond to the summonsj was never in default, and - the inquisition of damages was unauthorized as against him.

Moreover, should the judgment be now validated, he will be held to a liability he was not called- upon to contest and which he did not contest. Ho man can be bound by the result of a litigation, except by actual appearance or legal command- to appear. - -

Comprehensive as is the scope of section 723 of the Code, it cannot embrace a case >of which the court has. not jurisdiction, nor make valid what is void.- ' -' -

' ’ Motion denied, with costs.  