
    HERBERT B. FREEMAN, Plaintiff and Respondent, v. HENRY M. BARROWCLIFFE, Impleaded, etc., Appellant.
    II. Joint debtobs.
    1. Chapter 2, title 12, part 2, of old code, proceedings under, by summons to show cause why a defendant not served (the others being served) should not be bound by the judgment entered in form against him with the others.
    
      (a) When not applicable.
    
      . 1. Fictitious nwme.—Aft action was br oúght against two persons alleged to be joint debtors-. One was sued by a fictitious name. He did not appear. The other appeared- and defended. The judgment record showed a full and absolute judgment entered upon a personal service of the summons and complaint on the person designated by the fictitious name, and Upon verdict as to the other, Held, that the chapter
    DID NOT APPLY,
    Became—
    1.- If the person summoned to show cause is the one designated by the fictitious name, then the record showed a full and absolute judgment against him already.
    
      '<£) If desired to obtain a judgment against him by his true name, the proper proceeding is under section 451 of the new code.
    2: If the person summoned to show cause is not the one designated by the fictitious name, then he is not a party to the action.
    
      (a) If he is a third joint debtor, whose name' for some cause’ was omitted from the original summons, the remedy is under subdivision 4 of section 136 of the old code.
    
      (b) Plaintiff's proceedings.
    
    1. Affidavit necessary. .
    1. The summons must be accompanied by an affidavit of the persons subscribing it, that the judgment has not been satisfied, and specifying the amounts due them.
    (c) Pleadings by person summoned.
    
    1. Demurrer is not allowed ; the only pleading he is
    ALLOWED TO INTERPOSE IS AN ANSWER.
    Before- Speir and Freeman, JJ.
    
      Decided November 4, 1878.
    Appeal from order overruling demurrer
    The action was brought against John M. Falconer and Richard Roe, whose real name was unknown to the plaintiff, composing the firm of John M. Falconer & Co., as makers of two promissory notes.
    
      The defendant John M. Falconer appeared and answered, and a verdict having been rendered against him, judgment was entered and perfected against both defendants.
    Subsequently the appellant Henry M. Barrowcliffe, was served with a summons requiring him to show cause why he should not be bound by said judgment. He thereupon demurred to the complaint in the action on the ground that it did not set forth facts sufficient to constitute a cause of action as against him.
    The court at special term overruled the demurrer with costs to the plaintiff, and adjudged Barrowcliffe bound by said judgment, unless lie should withdraw the demurrer, pay the costs and serve an answer to the complaint in said action.
    From that order the present appeal is taken.
    
      Thomas & Wilder, attorneys, and of counsel, for appellant:
    I. There is no pretense that “Richard Roe,” in the judgment herein, is the designation of a plurality of persons. The complaint alleges that he is a unit; the postea shows that he has already been served with the summons and complaint herein, and has put in no defense thereto; the judgment, therefore, is already as perfect as it can be made. Ho other defendants remain to be brought in. If Henry M. Barrowcliffe and “ Richard Roe” are one and the same person, then the record should be amended accordingly.
    II. But if Henry M. Barrowcliffe and “ Richard Roe” are indeed identical, this demurrer is good on another ground. For it then appears by the judgment itself, which is already perfected against “Richard Roe,” that the plaintiff already has a judgment against Barrowcliffe, and all he need do is to amend his record in the manner provided by section 451, by substituting therein the name of Barrowcliffe for that of Roe, and then enforce his judgment. There is certainly no authority for requiring Barrowcliffe to show cause why he should not be bound by a judgment which already runs against him on that hypothesis. It is as if “Richard Roe” were sued over again upon a complaint on which judgment has already been rendered against him, and falls within the criticism of Judge Brady in Johnson v. Smith (14 Abb. 423). The objection appearing upon the face of the record, it can be taken by demurrer.
    III. Plaintiff, therefore, must abandon the hypothesis that “Richard Roe” and Henry M. Barrowcliffe are one and the same person. But this abandoned, it follows that Barrowcliffe is a third party, not named in the original summons and complaint, and as to him therefore the complaint discloses no cause of action whatever, and is clearly demurrable.
    IV. It was suggested below that Barrowcliffe’s remedy is restricted by section 379 (old code) to an answer, and that he cannot demur. But an answer includes a demurrer, as the greater always includes the less (See Brodhead v. Broadhead, 4 How. 308). His defense is simply, “ Your complaint shows a cause of action against John M. Falconer and ‘ Richard Roe.’ Your record shows service and recovery against both of them. You show, therefore, nothing' against me.” The plaintiff cannot reply to this that Barrowcliffe must demur to the complaint alone, for the plaintiff has required him to show cause why he should not be bound by the judgment, i. e., the whole record. Whatever defenses therefore appear on the face of the whole record are available on demurrer. It would certainly be idle to require Barrowcliffe to set up by way of answer, a defense which he would only have to put-in the plaintiff’s own judgment-record to prove.
    
      O. F. Wells, attorney, and of counsel, for respondent :
    I. There is no provision for any such pleading as a demurrer to the complaint in such cases, (a) I quote section 379 of the old code, which is the only law upon this point of practice: “Upon such summons any party summoned may answer within the time specified therein, denying the judgment or setting up any defense thereto which may have arisen subsequent to such judgment; and in addition thereto if the party be proceeded against, according to section 375, he may make any defense which he might have made to the action if the summons had been served on him at the time when the same was originally commenced, and such defense had been then interposed to such action.”
    II. Even if a demurrer were allowable, as included in the term defense in the section, yet the demurrer to be good must be, by the express restrictions of the statute, one that would have been good at the time when the action was originally commenced, had it been then interposed, (a) I submit that the complaint contains a complete cause of action against the people who composed the firm of J. M. Falconer & Co., and that this demurrer, if interposed in the original action, would have been held frivolous. (5) The argument made at the special term that the name of Barrowcliffe becoming known, it is necessary (Code, 451) at once to insert it in the place of one or more of the fictitious names used, is absurd, when we consider that the demurrer admits all facts stated in the complaint, prominent among which is the allegation that the defendants’ real names are unknown to plaintiff.
   By the Court.—Freedman, J.

The summons requiring Barrowcliffe to show cause why he should not be bound, was issued pursuant to section 379 of the old code, which forms part of a chapter relating to proceedings against joint debtors, &c., &c., and remaining still in force, notwithstanding the enactment of the new code.

By section. 375 of the said chapter, it is provided that when a judgment shall be recovered against one or more of several persons, jointly indebted upon a contract, those who were not originally summoned to' answer the complaint may be summoned to show cause why they should not be bound by the judgment, in the same manner as if they had been originally summoned. But such remedy is, by the same section, expressly confined to cases in which judgment has been recovered against one or more of several joint* debtors, by proceeding as provided in section 136. On turning to that section, it will be found to regulate plaintiff’s proceedings in cases, where the action is against two or more defendants, and the summons was served on one or more of them, but not on all of them. The remedy, therefore, exists only when one of several persons jointly indebted upon contract, has been named in the original summons and the complaint as a party defendant, but has not been served. In such a case, he maybe summoned to show cause why he should not be bound, and then the .summons is to be accompanied by an affidavit of the person subscribing it, that the judgment has not been satisfied, and specifying the amount due thereon (§ 378).

In the case at bar, no affidavit accompanied the summons. In addition, it appeared by the judgment-roll, that the summons and complaint in the action h,ad been served upon both John M. Falconer and Richard Roe, constituting the firm of J. M. Falconer & Co., and that judgment had been fully perfected against both defendants, .so. as to bind both their joint and several property. For these reasons, the appellant . should not have been summoned at all under section 379.

For if it be claimed that the plaintiff was originally ignorant of the name of the defendant, who, together with John M. Falconer, composed the firm of J. M. Falconer & Co., that for such reason he designated such defendant by the name of Richard Roe, that the summons and complaint were served upon the appellant under the said designation, and that he subsequently discovered the true name of the defendant so designated and served to be Henry M. Barrowcliffe, he should, upon proof of these facts, have applied under section 451 of the new code for an amendment of the summons, complaint, and judgment-roll, by the insertion of the true in place of the fictitious name.

If, on the other hand, it be claimed that Barrowcliffe was an additional partner with the defendants named in the judgment, that as such he is jointly liable with them, but that for some cause his name was omitted in the original summons and complaint, plaintiffs’ remedy is by action, as provided by subd. 4 of section 136, above referred to.

It therefore remains to be seen whether the appellant was regular in availing himself of a demurrer to get rid of plaintiffs’ unauthorized proceeding.

Under section 379 he had the right, by answer, to deny the judgment, or to set up any defense thereto which arose subsequently to the judgment, and in addition, to make any defense which he might have made to the action if the summons had been served on him at the time when the action was originally commenced, and such defense had then been interposed to such action. This does not authorize a demurrer in terms. Nevertheless, if the proceeding were an action, and if no special reasons existed in favor of a different construction, I should incline to the opinion that the word “defense” includes a demurrer. The word answer is used in the old code in this extended sense on several occasions, and a demurrer is, in effect, an answer that the party demurring will go no further, because the other has shown nothing against him.

But the code does not treat this proceeding as an action. It directs the judgment to be given in the same manner as in 'an action, thus negativing the idea that there is an action, and for the same reason, it makes special provisions for the form of the summons and its service, and for the pleadings, and the mode of enforcing the judgment. It sedulously avoids calling the parties plaintiffs and defendants, dispenses with any new complaint, and makes the summons not for the payment of money, or for relief, but to show cause (Mills v. Thursby, 2 Abb. Pr. 432).

Section 379 then provides that cause shall be shown by answer, and when that ip done, the party issuing the summons may, under section 380, demur or reply to the answer, and the party summoned may demur to the reply.

The statute, therefore, upon which this special proceeding depends exclusively, makes careful distinction between an answer and a demurrer, and expressly limits the use to which they, or either of them, maybe put in the cases arising under the statute.

From this it follows that the word “ answer,” occurring in section 379, must be taken in the restricted sense in which it has evidently been used, and that the appellant was not authorized to interpose a demurrer.

For the reason last stated, the order should be affirmed with costs, but with leave to appellant to withdraw said demurrer and answer, upon payment of such costs, and of the costs of the special term.

Speir, J., concurred.  