Grey

The plaintiff and respondent in the instant case filed a suit in replevin against J. T. Milligan, also including several fictitious names, and praying that upon discovery of the true names of other defendants they be substituted therefor. J. T. Milligan and the appellant Edwin S. Milligan were both served, the return of the sheriff showing that he had served John Doe, whose true name was Edwin S. Milligan. Upon his failure to make an appearance default was entered against the latter, and upon the trial it appearing that he had previously acquired possession of the property in controversy, the plaintiff dismissed as to J. T. Milligan and received a judgment against the appellant.

Twenty days after the trial appellant moved to set aside the judgment and for leave to answer, which was denied.

It was recited in affidavits accompanying the motion that, being served as “John Doe,” he had no means of knowing that he had been made a party defendant, and that since his father, J. T. Milligan, had been interested in the subject matter of the action, he immediately delivered the summons and complaint to him. It appears from the evidence, however, that one A. 0. Eekman, claiming to be the…