The title to this action for personal injuries originally read as follows:

“Bessie Roth,

Plaintiff,

vs.

“Will Mastín Trio, Sammy Davis, Jr., Sammy Davis, Will Mastín, Doe I-X,

Defendants.”

The allegations relating to defendants read:

“I. Defendants are citizens and residents of the State of California; plaintiff is a citizen and resident of the State of Ohio.

“II. This is an action and controversy between citizens of different states involving an amount in excess of $3,000.00, exclusive of interest and costs.

“HI. The true names or capacities, whether individual, corporate associate or otherwise, of defendants Doe I-X are unknown to plaintiff, who therefore sues said defendants by such fictitious names. When the true names, identities or capacities of such fictitiously designated defendants are ascertained, plaintiff will ask leave of court to amend this complaint to insert said true names, identities or capacities, together with the proper charging allegations. Plaintiff is informed and believes and thereon alleges that •each' of the defendants sued herein ns a Doe is responsible in some manner for the events and happenings herein referred to, and caused injury and damages proximately thereby to the plaintiff as herein alleged.

“IV. Plaintiff is informed and believes and thereon alleges that at ¿11 of the times mentioned herein, defendants, and each of them, were the owners of the motor vehicle referred to in this complaint and generally described as a 1954, black, Cadillac convertible automobile.

“V. Plaintiff is informed and believes and thereon alleges that at all times mentioned herein the defendant, Sammy Davis, Jr., was the agent, servant and employee of his said co-defendants, and was acting within the time, place, purpose and scope of the said employment and agency.

“VI. Plaintiff is informed and believes and thereon alleges that at all times mentioned herein the defendant, Sammy Davis, Jr., was driving the aforementioned vehicle with the consent and permission and knowledge of his said co-defendants.”

The complaint proceeds to set up the particulars of an automobile accident which is claimed to be the result of the carelessness and negligence of “defendants, and each of them.”

No fictitious defendant named as “Doe I-X” was ever served and no one of them appeared in the action. The case was tried before a jury as to defendant Sammy Davis, Jr. There is no contention that the evidence showed a shadow of liability as to any other than this defendant. The verdict returned by the jury was in favor of Sammy Davis, Jr.

Plaintiff appealed. The sole point of the appeal, as stated by attorneys for plaintiff in their opening brief, is as follows:

Also, in plaintiff’s opening brief there appears this statement:

But the “Does I-X” do not appear in the title to the judgment from which appeal is taken. In addition, that judgment contains the following sentence:

Defendant then printed a Supplemental Transcript of Record which shows that the fictitious defendants were dismissed from the action by the court of its own motion before counsel presented arguments to the jury.

Although the complaint might have been dismissed because it did not show on its face complete diversity of citizenship between plaintiff and all designated defendants, this situation had completely changed at the end of the trial. It was perfectly obvious then that the allegations were sham. No other defendants had been served or had appeared. Therefore, as no further action had been taken, it was apparent that there were no defendants “Doe I-X”. In Hann v. City of Clinton, 10 Cir., 131 F.2d 978 , where the question was whether it was necessary to join a party not indispensable, it is said:

And in Salem Trust Company v. Manufacturers’ Finance Company, 264 U.S. 182, 189 , 44 S.Ct. 266, 267 , 68 L.Ed. 628 , the court say:

But the trial judge removed even this simulacrum of a technicality by dismissing these fictitious defendants of his own motion. Such extreme care in protecting the record is highly commendable. It left plaintiff without a place to stand for appeal. Yet counsel for plaintiff filed an appeal, printed a record and brief, and thereby forced defendant to print a supplemental record and brief. The cause was argued orally, and an extremely busy appellate court has been required to give consideration thereto. In the case of a like appeal without merit in the future, we may consider taxing the costs to the attorney responsible under Rule 25 of this Court. This suggestion will serve as a warning.

Affirmed.