                              NO. 93-573
          IN THE SUPREME COURT OF THE STATE OF MONTANA




JERRY MARTIN   &   ASSOCIATES, INC.,
          Plaintiff and Appellant,
    v.
DON'S WESTLAND BULK,
          Defendant and Respondent.



APPEAL FROM:       District Court of the Fifteenth Judicial District,
                   In and for the County of Daniels,
                   The Honorable M. James Sorte, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
                   Stephen A. Doherty, Mon.teau, Guen       &   Dec
                   Great Falls, Montana
          For Respondent:
                   Loren J. O'Toole, O'Toole   &   OtToole, Plentywood,
                   Montana


                                Submitted on Briefs:     August 18, 1994
                                            Decided:      November 17, 1994
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
     Jerry Martin and Associates, Inc., appeals from a decision of
the Fifteenth Judicial District Court, Daniels County, denying its
motion for an order that it be allowed to levy and execute judgment
against Donald Becker's personal assets.   We affirm.
     As reframed by this Court, the dispositive issue is whether
the District Court erred by denying Martin's motion for an order
which would allow it to levy and execute against Donald Becker's
personal assets to collect on a default judgment entered against
Don's Westland Bulk.
     On February 8, 1985, the United States Bankruptcy Court for
the Southern District of California rendered a default judgment in
favor of Nucorp Liquidated Trust against Don's Westland Bulk.
There is no evidence in the District Court record that Becker was
ever served or was a party to these proceedings.        The default
judgment was subsequently assigned to Jerry Martin and Associates,
Inc. (Martin). The judgment was duly entered in the United States
District Court in Great Falls, Montana, and in the District Court
of the Fifteenth Judicial District, Daniels County, Montana. Eight
years after the entry of the default judgment, Martin attempted to
collect the judgment by sending a Writ of Execution to the Daniels
County Sheriff   .   The Sheriff returned the writ unsatisfied,
informing Martin that there were no assets or bank accounts located
in Daniels County belonging to Don's Westland Bulk.
     Martin then sent Becker a series of interrogatories in aid of
execution of judgment. Becker admitted owning Don's Westland Bulk.
Becker stated that Don's Westland Bulk was a sole proprietorship.
Don's Westland Bulk is not a registered business name in Montana
nor does it maintain bank accounts or own assets.
     Martin moved the District Court to order that the judgment
against Don's Westland Bulk be satisfied by allowing it to levy and
execute against Becker's personal assets. The motion was accompa-
nied by a memorandum which in essence argued that Don's Westland
Bulk and Donald Becker are the same entity, and thus the default
judgment should be satisfied from Becker's personal assets. Martin
cited no legal authority for this proposition.    The court denied
Martin's motion. Martin's motion for reconsideration was likewise
denied.   Martin appeals.


     Did the District Court err by denying Martin's motion for an
order which would allow it to levy and execute against Becker's
personal assets to satisfy a default judgment entered against Don's
Westland Bulk?
     Martin presents several different arguments which it claims
entitles it to levy and execute against Becker personally. First,
Martin claims that 5 25-5-104, MCA, supports its right to levy
against Becker's assets.    Section 25-5-104, MCA, states:
     Action against a business association. When two or more
     persons associated in any business transact such business
     under a common name, whether it comprises the names of
     such persons or not, the associates may be sued by such
     common name, the summons in such cases being served on
     one or more of the associates; and the judgment in the
     action shall bind the joint property of all the associ-
     ates in the same manner as if all had been named defen-
     dants and had been sued upon their joint liability.
     [Emphasis added.]
The statute by its terms is clearly inapplicable. Martin provides
no case law or authority for its contention that this statute
should be applied to sole proprietors.    We conclude that 5 25-5-
104, MCA, does not entitle Martin to levy and execute against
Beckerrs personal assets to recover on a default judgment against
Don's Westland Bulk.
     Martin also argues that 5 5 3O-l3-2Ol(l), 201(2), and 215, MCA,
prevent Becker from avoiding levy and execution on his personal
assets.   Section 30-13-201, MCA, includes the following defini-
tions:
          (1) lvAssumedbusiness namet1means any business name
     other than the full, true, and correct name of a person.
          (2) "Person" means any individual, partnership,
     corporation, or other association.
Section 30-13-215, MCA, states:
    Effect of transacting business without certificate. No
    person or persons conducting or transacting business in
    this state without an effective certificate of registra-
    tion of an assumed business name or having any interest
    therein may maintain any suit or action in any of the
    courts of this state under such name.
Martin contends that since Becker transacted business under the
unregistered assumed business name of Don's Westland Bulk, he is
liable for the default judgment entered against that company.
Again, Martin presents no case law or authority which interprets
these statutes in such a manner.       Section 30-13-215, MCA, prevents
an unregistered business from filing suit under its unregistered
name.     Nothing in the statute indicates that an individual should
be held accountable for a default judgment entered against an
unregistered business. We conclude that 3 30-13-215, MCA, does not
make Becker personally liable for a default judgment entered
against Don's Westland Bulk.
     Martin also argues that Don's Westland Bulk and Donald Becker
are actually one and the same. Martin insists that there has never
been a true legal entity known as Don's Westland Bulk; rather this
name was merely a front for the individual, Donald Becker. Martin
claims that, similar to piercing the corporate veil, this Court
should view Becker and Don's Westland Bulk as one and the same
entity.     Martin cites various cases that deal with piercing the
corporate veil.     Hando v. PPG Industries, Inc. (1989), 236 Mont.
493, 771 P.2d 956; Meridian Minerals Co. v. Nicor Minerals, Inc.
(1987), 228 Mont. 274, 742 P.2d 456.          However, Martin presents no
authority for its contention that this Court should "pierce the
entity veil."      Piercing is used to eliminate an individual's
corporate liability protection in cases where one establishes that
the shareholders are the alter ego of the corporation. Piercing is
an equitable remedy and applies only to prevent fraud or achieve
equity.        Jody J. Brewster, Comment, Piercins the CorDorate Veil
in Montana, 44 Mont. L. Rev. 91 (1983)    .    The theory of piercing the
                                   5
corporate veil is inapplicable against a sole proprietorship.
Martin admits that Don's Westland Bulk is an unregistered sole
proprietorship, not a corporation.    We find no merit in Martin's
piercing the entity veil argument.
     Martin also argues that the "rni~nomer'~
                                           rule derived from Rule
15(c), M.R.Civ.P., should apply. The misnomer rule allows a party
to amend a complaint to name a defendant after the running of the
applicable statute of limitations. The amended complaint "relates
back" to the date of the original complaint for statute of
limitation purposes.    LaForest v. Texaco, Inc. (1978), 179 Mont.
42, 45-46, 585 P.2d 1318, 1320.
     The misnomer rule does not apply to this case for several
reasons. First, the misnomer rule applies where the correct party
is sued, but the name in the complaint is merely misspelled or a
subsidiary corporation is named rather than the parent corporation.
Wentz v. Alberto Culver Co. (D. Mont. l969), 294 F.Supp. 1327. The
misnomer rule does not apply to situations where an entirely new
party would be added to the litigation by allowing the amendment.
LaForest, 585 P.2d at 1321.    Most importantly, the misnomer rule
allows for amendment of complaints, not judgments.      Rule 15(c),
M.R.Civ.P.,   from which the misnomer rule is derived, states:
          Whenever the claim or defense asserted in the
     amended pleading arose out of the conduct, transaction,
     or occurrence set forth or attempted to be set forth in
     the original pleading, the amendment relates back to the
     date of the original pleading. An amendment chancrincr the
     party against whom a claim is asserted relates back if
     the foregoing provision is satisfied and, within the
     period provided by law for commencing the action against
     the party to be brought in by amendment, that party (1)
     has received such notice of the institution of the action
     that the party will not be prejudiced in maintaining a
     defense on the merits, and (2) knew or should have known
     that, but for a mistake concerning the identity of the
     proper party, the action would have been brought against
     the party. [Emphasis added.]
This rule clearly deals with amending pleadings, not judgments. If
an amendment is allowed to a complaint, the party added to the
complaint may still defend the case on its merits. Lien v. Murphy,
Corp. (1982), 201 Mont. 488, 656 P.2d 804. Amendment of a default
judgment provides the new party with no such opportunity.   Martin
cites no authority for its proposition that we should apply the
misnomer rule to judgments as well as pleadings.   We conclude the
misnomer rule is inapplicable to the amendment of judgments.
     Finally, Martin argues that the District Court had a duty to
consider the evidence presented and determine whether Becker and
Don's Westland Bulk were one and the same.     Once again, Martin
gives no authority for this proposition and fails to explain to
this Court why this duty exists.   A default judgment was entered
against Don's Westland Bulk, not against Donald Becker.     Martin
cites no authority by which the Montana District Court can amend
the judgment of the Federal Bankruptcy Court to include Becker. We
will not amend a default judgment to cure a deficient pleading in
the bankruptcy court eight years after the default judgment has
been entered.
      We affirm the District Court's holding denying Martin's motion
 to levy and execute against the assets of Donald Becker in order to
 collect on a default judgment entered against Don's Westland Bulk.




C/         Justices
Justice Terry N. Trieweiler dissenting.
     I dissent from the majority opinion.
     The majority's principle criticism of Martin's suggestion that
Donald Becker and Don's Westland Bulk be treated as one and the
same is that Martin has failed to provide authority for doing so.
Therefore, this opinion provides that authority.
     In A-ZEqu@. Co.   V,   Moody (Ill. App. Ct. 1980),   410 N.E.2d   438,

the plaintiff sued Ken Moody Masonry Company in order to recover
rental payments due for certain leased equipment and damages
resulting from the alleged conversion of that equipment.               The
summons was served on a secretary at Ken Moody's place of business.
When Moody failed to appear and answer the complaint, a default
judgment was entered. Subsequent to the entry of judgment, it was
learned   that defendant was         not    a   corporation, but   a   sole
proprietorship owned and operated by Kenneth Moody.           Pursuant to
plaintiff's motion, the judgment was amended to describe the
defendant as Kenneth Moody d/b/a Ken Moody Masonry Company.
     After execution began on Moody's property, he filed a motion
to quash the service of summons.           That motion was granted by the
trial court, which held that the default judgment was, thereafter,
void ab initb.   The Appellate Court of ~llinoisreversed the trial

court order for the following reason:
      [Wlhere a summons is served upon defendant personally,
      and the circumstances are such as to indicate that he is
      the person intended to be sued, then he is subject to the
      judgment, even though the process and the judgment do not
      refer to him by his correct name. (Janove v. Bacon (1955),
      6 111.2d 245, 249-50, 128 N.E.2d 706.)      Regarding the
     issue presented in this matter, our Supreme Court has
     stated:
           "Names are nothins. The gist of the matter is,
           were the parties in interest actually served.
           [ I ] f the writ is served on a party, by a wrong
                                                                  ...
           name, intended to be sued, and he fails to appear
           and plead the misnomer in abatement, and suffers
           judgment to be obtained, he is concluded, and in
           all future litigation may be connected with the
           suit or judgment by proper averments; and when such
           averments are made and proved, the party intended
           to be named in the judgment is affected as though
           he were properly named therein." Pond v. Ennis (18731,
           69 Ill. 341, 344-45.



          We feel it evident that this defendant was aware
     that Ken Moody and the Ken Moody Masonry Company were one
     and the same individual. Accordingly, the trial court
     erred when it granted defendant's motion to quash the
     summons and vacate the default judgment.
A - 2 Equip. , 410 N.E. 2d at 440-41 (emphasis added).

      In Hughes   V.   Cox   (Ala. l992), 601 So. 2d 465, the plaintiffs

filed a complaint naming "Hughes Realty of Clanton, Alabamav1 a
                                                             as

defendant.    Default judgment was entered against that defendant,
and at the hearing on damages t h e caption was amended to substitute
Eearlene Hughes d/b/a Hughes Realty as the proper party defendant.
Although Gearlene Hughes had been             served with    the original
complaint, she was            not   served with   the   amended   complaint.
Nevertheless, subsequently the district court entered default
judgment against her.           Hughes1 motion to set aside the default
judgment was denied, and that order was affirmed on appeal to the
Supreme Court of Alabama.
     On appeal, Hughes contended that because the action was not
filed against a suable entity, but only against a trade name under
which she did business, the complaint did not name her as a
defendant, and that because she was never served with the amended
complaint, the district court never obtained jurisdiction over her,
and therefore, the judgment was void.     Hughes relied on a prior
decision by the Alabama Court in May v. Clanton (1922), 95 So. 30, in

which the court held that a judgment entered against the trade name
of a sole proprietorship cannot be enforced by execution against
the sole proprietor.
     The Alabama court, however, reversed May for the reason that:

          The holding in May, however, is contrary to the
     principles of pleading established by the Alabama Rules
     of Civil Procedure. "These rules shall be construed to
     secure the just, speedy and inexpensive determination of
     every action." Rule l(c).    ..   . The rules are designed
     to prevent preclusion of a viable claim or defense
     because of "technical inaccuracy in pleading. " Prescott v.
     Thompson TractorCo., 495 So.2d 513, 516 (Ala.1986).

Hughes, 601 So. 2d at 468.

     The Alabama Court held that since Hughes had personally
received service of the complaint naming her sole proprietorship as
a defendant, she had received fair notice that a claim was being
filed against her.     Citing other Alabama decisions, the Alabama
Court concluded that:
          By the Court's reasoning in Nicrosi, a complaint or a
     judgment against the Hughes Realty Company would be a
     complaint or a judgment against whatever entity was doing
     business in that name.   ...
            ...  T h e change in the present case was also only
      "a matter of description      ...
                                      which [did] not affect the
      identity of the parties sought to be described, but only
      [gave] accuracy and certainty to it."
            . . .Under the reasoning of the N c o i line of
                                                irs
     cases, the failure to serve Hughes with the amended
     complaint did not deprive the court of jurisdiction over
     her.   The amendment did not change the nature of the
     suit, nor did it add any new parties to the action.


            . . .    Havinq considered the question fully, we
     affirmativelv hold that a iudment entered against a
     trade name is a judgment aaainst the individual doinq
     business under that trade name, at least so lonq as the
     individual was ~ersonallv sewed with the complaint.
     Absent a statute to the contrary, an individual has the
     right to be known by any name that he chooses, and a
     judgment entered for o x against that individual in either
     an assumed name or a trade name is valid. See 49 C.J.S.
     Judgments 5 7 5 , p . 197 (1947).

Hughes, 601   SO.   2d at 469,      470, 471    (emphasis added; citation

omitted; bracketed material in original).
      The Hughes decision cites cases from other jurisdictions for

its conclusion. T h e y include Aman C l e t o S r i e Iizc. v. B r e s (Mo. ct ,
                                      olcin evc,                 ugs

App. 1981), 612 S.W.2d       405; Janovev.Bacon    (111, 19551, 2 2 8 N.E.2d



v.K?iras (Ga. Ct. App. 19471, 45 S.E.2d 72; Es1ingerv.Henzdon (Ga. 19241,

124 S.E.   169.   All of these decisions dealt with issues similar to
the one presented in this case and arrived at a conclusion opposite
to that reached by the majority.
      Likewise, Donald Becker has the right to be known by, and deal
with other businesses, under any name that he chooses.                However,
the courts of this State, and other jurisdictions, have a right to
hold him accountable for his acts under those trade names that he
assumes.   I would conclude, as did the Supreme Court of Alabama,

that a judgment entered against Becker's trade name is a judgment
against Becker, at least so long as he was personally served with
the complaint.
     The majority cites no authority for its conclusion that even
though Dongs Westland      Bulk and Donald   Becker are identical
entities, a judgment against Don's Westland Bulk cannot be enforced
against Donald Becker.      The majority opinion exalts form over
substance which, as pointed out by the Supreme Court of Alabama, is
the opposite of the result intended by        our Rules of Civil
Procedure.
     The record in this case has not been fully developed because
there was no evidentiary hearing prior to the District Court's
order denying Martints motion permitting it to execute against
Becker. 1 would reverse the order of the District Court and remand
this case for further proceedings to determine whether Becker was,
in fact, personally served prior to entry of default judgment
against Don's Westland Bulk in the Bankruptcy Court for the
Southern District of California. In the event that he was, I would
hold that t h a t judgment can be enforced against him personally by
execution on his assets.
