Rivard v. Gardner

• Citation: 39 Ill. 125,1866 WL 4371
• Parties: NARCISSE RIVARD et al.v.REUBEN G. GARDNER.
• Decision Date: 31 January 1866
• Court: Supreme Court of Illinois

39 Ill. 125

1866 WL 4371 (Ill.)

NARCISSE RIVARD et al.

v.REUBEN G. GARDNER.

Supreme Court of Illinois.

January Term, 1866.

WRIT OF ERROR to the Circuit Court of Sangamon county; the Hon. EDWARD Y. RICE, Judge, presiding.

The facts in this case sufficiently appear in the opinion.

Mr. W. H. HERNDON, for the plaintiff in error.

Messrs. EDWARDS & HAY, for the defendant in error. Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action of ejectment brought by the plaintiffs in error, in which a verdict and judgment were rendered against them in the Circuit Court, whereupon they sued out a writ of error. The plaintiffs, on the trial, deraigned title from the government to one John Sinclair, and then put in evidence a deed from John Sinclair to themselves, bearing date November 5, 1851. The defendants then offered the record of a suit in chancery in the Circuit Court of Sangamon county, in which county the land is situate. The suit was brought at the June Term, 1853, by said John Sinclair against the plaintiffs in error, who were his children, for the purpose of setting aside said deed offered by the plaintiffs in evidence. At the August Term, 1853, the court pronounced a decree annulling the deed. To the introduction of this record in evidence, the plaintiffs objected upon several grounds, which we will consider in their order.

The bill was filed against the defendants by the name of Sinclair, but process issued against them under the name of St. Clair, and was returned served upon them under the latter name. It is urged that this summons ran against different parties from those named in the bill, and must be presumed to have been served on different parties, and hence the court acquired no jurisdiction. On looking through the record, we find the names of both the complainant and defendants are written sometimes in the one mode and sometimes in the other, and it seems to us a clear case for the application of the principle of idem sonans. When spoken with ordinary rapidity of utterance, an unobservant ear would not mark the difference between them. A difference of sound there undoubtedly is, when the words are carefully enunciated, as there is in very many instances which courts regard as idem sonans. But it is to an ordinary and familiar utterance that the rule applies, and not to one carefully intended to discriminate the difference of sound. Moreover, the two names we understand to be really the same, one being the French form and the other the English. We believe the name to be properly French, and the prefix of Saint to have been gradually corrupted into its present orthography, though even now the forms are sometimes used interchangeably, as they were in the record before us. The doctrine of idem sonans was applied in Barnes v. The People, 18 Ill. 52, to the names of Dugald and Dougal, and the difference of sound between them, when uttered in ordinary conversation, is certainly as great as between St. Clair and Sinclair.

It is next objected that the return of the sheriff, upon the summons, does not show the date of service, and, non constat, that the court had jurisdiction to pronounce a decree at the time it did so. The decree, however, recites that the defendants were duly served, and, on the authority of Banks v. Banks, 31 Ill. 162; Reddick v. State Bank, 27 Id. 145, and Timmerman v. Phelps, 27 Id. 496, this recital in the decree cures the defect in the return. Although the return was without date we must suppose the court was satisfied, in some legitimate mode, that the service was in season. It may, for example, have been shown to the court, by oral evidence, when the writ was served, or it may have appeared by the filing mark that it had been returned to the clerk more than ten days prior to the commencement of the term. In indulging in presumptions in support of the recital, by the court, it is to be observed that we presume nothing against the return of the sheriff, but consistently with it.

The plaintiffs, in further support of their objection to the record, and for the purpose of showing the defendants had never, in fact, been served, offered some testimony of a negative and unsatisfactory character, and then put upon the stand the sheriff in whose name the return was made, and offered to prove by him that the writ had never been served, and that a deputy had been bribed to make a false return. The court excluded this evidence, as well as that already received. This decision of the court is assigned for error.

Whether the recital, in a decree, of jurisdictional facts, can be contradicted in a collateral proceeding, is a question about which American courts have widely differed. In this court it can hardly be considered a settled question, as the case of Goudy v. Hall, 30 Ill. 109, in which the merely prima facie character of such recitals is asserted, is not reconcilable with Bimelar v. Dawson, 4 Scam. 536, and Welch v. Sykes, 3 Gilm. 197. In Goudy v. Hall, however, the illustrations of the court are drawn from cases in which the recitals in the decree could be contradicted by other portions of the record, and a distinction may well be taken between cases of that character and one...