Bloomer v. Cristler

• Decision Date: 02 October 1911
• Citation: 123 P. 966,22 Colo.App. 238
• Parties: BLOOMER v. CRISTLER.
• Court: Colorado Court of Appeals

123 P. 966

22 Colo.App. 238

BLOOMER v. CRISTLER.

Court of Appeals of Colorado

October 2, 1911

Appeal from District Court, Yuma County; H.P. Burke, Judge.

Action by M.G. Cristler against R.H. Bloomer. From a judgment for plaintiff, defendant appeals. Affirmed.

August Muntzing and Egbert More, of Akron, for appellant.

Chalkley A. Wilson and Asher B. Wilson, of Akron, for appellee.

HURLBUT J.

Action by appellee, plaintiff below, against appellant, defendant to quiet title to land in Yuma county.

Complaint is in usual form, based upon section 255, Mills' Annotated Code. Defendant filed answer and cross-complaint. The former contained admissions and denials of the allegations in the complaint, and, in addition, set up title in himself under tax deed of January 15, 1901; also pleaded the five-year statute of limitations (section 3904 Mills' Annotated Statutes). The third defense pleaded the seven-year statute of limitations under claim and color of title, in good faith, and payment of all taxes for seven successive years. Section 4090, R.S.1908. The fourth defense pleaded res judicata, based upon a judgment of the county court in an action to quiet title to the premises, in which action defendant's grantor, August Muntzing, was plaintiff and Richard Brooks et al. were defendants. The cross-complaint is substantially the same as the complaint with the exception of names. Plaintiff filed replication to defendant's answer, admitting and denying new matter stated therein, and pleaded title to the premises by mesne conveyances from the United States government, her immediate grantor being Richard Brooke, and also pleaded the invalidity of said tax deed and county court judgment. The case was tried to the court, without the intervention of a jury, and judgment rendered for plaintiff.

Error is predicated upon the refusal of the lower court to admit in evidence an exemplification of the record of the said county court judgment; said judgment being based upon substituted service by publication of summons. The action was begun in the county court by August Muntzing, plaintiff, against Richard Brooks et al., defendants, none of whom, unless it be Brooks, is shown to have ever been connected with the title to the property. The summons published was directed to Richard Brooks; the affidavit of publication recited Richard Brooks as one of the defendants; the order for publication of summons was directed to Richard Brooks; praecipe for default and judgment was asked against Richard Brooks; and the judgment itself was against Richard Brooks. So it appears that the entire proceedings in the county court were conducted against Richard Brooks et al.; while the title to the premises appeared of record in the name of Richard Brooke, who was plaintiff's immediate grantor. The record shows that the title to this property was originally patented by the government to Mathew Harr, who afterwards, with his wife, executed a deed of the premises to Richard Brooke.

The doctrine of idem sonans is that, where two names are spelled differently, but sound alike in their pronunciation, they are to be regarded as the same. In our language, the consonant "s," terminating the letters of a name, is seldom silent. If it appears as the last letter of a name, the pronunciation thereof conveys to the ear an entirely different sound than that conveyed when the consonant is omitted. The converse is equally true.

Moore v. Allen, 26 Colo. 197, 57 P. 698, 77 Am.St.Rep. 255, decided that it was fatal error in the trial court to admit in evidence a deed executed by Waldimar Arens, attorney in fact for the grantors, where it was shown that the power of attorney had been executed to Waltimore Arens. It was there claimed that Waltimore and Waldimar came within the doctrine of idem sonans. The court says: "In the matter of names, orthography is not important, if the sound is the same (Marr v. Wetzel, 3 Colo. 2); and it is sufficient in law to spell a name as it is regularly or commonly pronounced. 16 Ency.Law, 126. But here the difference in the two names is so marked that the attentive ear would find no difficulty in distinguishing between them; and the difference in spelling is such that necessarily the pronunciation is equally distinct. The proper rule to observe in applying the doctrine of idem sonans being 'that if two names, according to the ordinary rules of pronouncing the English language, may be sounded alike without doing violence to the letters found in the variant orthography, then the variance is prima facie at least immaterial, and may be so decided by the court.' Applying this rule, it is at once apparent from an inspection of the orthography of the two names that, in the absence of information other than thus obtained, the variance is fatal."

From 29 Cyc. 275, we extract the following: "Usually insertion or omission of a 't' before the ending 'son' is held immaterial, as is also the omission or addition of a final 'e,' the two names being considered idem sonans; but the addition or omission of a final 's' is usually held a fatal variance."

Many cases are cited in support of the text, viz "Semon" and "Semons," in Semon v. Hill, 7 Ark. 70, "David" and "Davids," in Davids v. People, 192 Ill. 176, 61 N.E. 537, "Meyer" and "Meyers," in Gonzalia v. Bartelsman, 143 Ill. 634, 32 N.E. 532, "Wood" and "Woods," in Neiderluck v. State, 21 Tex.App. 320, 17...