McIntire

The Mclntires, petitioners for a writ of mandate, seek to compel the superior court to quash service of summons on them by plaintiffs Kelly in an action for personal injuries and wrongful death arising out of a July 1971 camper-van accident in New Mexico.

In June 1972 plaintiffs filed their action against several named defendants, but not including petitioners, and against Does 1 to 20. In May 1974 plaintiffs’ attorney signed and filed a stipulation that “[a]ll parties necessaiy to disposition of this action have been served” and that “[t]he action is dismissed as to the fictitious and unserved defendants.” In August 1974, after the deposition of petitioner James Mclntire had been taken, plaintiffs sought court permission to amend their complaint to allege additional damages against one of the named defendants for giving answers to interrogatories which concealed the fact that petitioners supplied the fiberglass camper-top involved in the accident and which thereby prevented suit against petitioners in that plaintiffs had theretofore dismissed all fictitious defendants from the action.

The cause came to trial in September 1974, with petitioner James Mclntire on call as…