Calhoun v. F. G. Elliott Hardware Co.

Citation156 A. 343
PartiesCALHOUN v. F. G. ELLIOTT HARDWARE CO.
Decision Date05 October 1931
CourtSuperior Court of Delaware
156 A. 343

CALHOUN
v.
F. G. ELLIOTT HARDWARECO.

Superior Court of Delaware. Sussex.

Oct. 5, 1931.


Action by the F. G. Elliott Hardware Company, p.b.r., against H. T. Calhoun, d.b.a. To review a judgment of a justice of the peace for plaintiff, defendant brings certiorari.

Affirmed.

HARRINGTON and RICHARDS, JJ., sitting.

James M. Tunnell, of Georgetown, for defendant below, appellant.

Andrew J. Lynch, of Georgetown, for plaintiff below, respondent.

Superior Court for Sussex County, No. 4, June Terih, 1931.

156 A. 344

Certiorari on the judgment of a Justice of the Peace.

The records sent up by the Justice showed that suit had been brought and judgment had been rendered against H. T. Calhoun, the defendant below, for $9.03 together with costs.

It also showed that Calhoun had appeared at the trial.

The exceptions filed by Calhoun were all to the effect that he had been sued and that judgment had been rendered against him by the initials of his Christian name. The only question before the Court was whether his appearance cured this defect.

HARRINGTON, J., delivering the opinion of the Court:

Under the old common law rule, in the absence of some pleading and proof to the contrary, every person was presumed to have a Christian or given name in addition to his family or surname, and generally speaking was not properly identified unless described thereby. 45 C. J. 368; Gatty v. Field, 9 Q.

B. 431, 115 Eng. Rep. 1337; Holman v. Walden, 91 Eng. Rep. 6; Gardner v. State, 4 Ind. 632.

This rule applied to both civil and criminal proceedings and under it a party to an action was not properly identified if instead of setting out his Christian name the letter of the alphabet standing therefor preceded his family name. McGrew v. Steiner, 77 N. J. Law, 377, 71 A. 1122; Monroe Cattle Co. v. Becker, 147 U. S. 47, 13 S. Ct. 217, 37 L. Ed. 72; Walton v. Marietta Chair Co., 157 U. S. 342, 15 S. Ct. 626, 39 L. Ed. 725; Gerrish v. State, 53 Ala. 476; Woodward v. Daniels, 3 W. W. Harr. (33 Del.) 36, 130 A. 30; Truitt v. Lecates, 5 Boyce, 288, 92 A. 850; Dickerson v. Kelley, 3 Pennewill, 69, 50 A. 512; Stephens on Pleading, 302; 14 Enc. PI. & Pr. 273; 132 Am. St. Rep. 573; 19 R. C. L. 1329; 45

C. J. 368.

The same rule, also, applied to any third persons referred to in the pleadings in such proceedings. Kinnesley v. Knotts, 137 Eng. Rep. 388; Lomax v. Landells, 136 Eng. Rep. 1374; Levy v. Webb, 9 Q. B. 427, 115 Eng. Rep. 1336; Appelmans v. Blanch, 14 M. & W. 154; Gatty v. Field, 9 Q. B. 431, 115 Eng. Rep. 133; 45 C. J. 368.

In the course of time the English Courts, in an attempt to break away from the strictness of the old rule, held that if a letter preceding a person's surname was a vowel, it would usually be presumed to be his real Christian name.

This distinction between a vowel and a consonant was based on the theory that a vowel could in most cases be readily pronounced as a name, while a consonant usually could not. Lomax v. Landells, 136 Eng. Rep. 1374; Kinnesley v. Knott, 137 Eng. Rep. 388; Reg. v. Dale, 117 Eng. Rep. 1206; Nash v. Calder, 5 C. B. 177; Tweedy v. Jarvis, 27 Conn. 42; 19 R. C. L. 1328; Ann. Cas. 1914A, 1115; 45 C. J. 373, Note.

The rule above referred to, however, had little, if any, support in America (Tweedy v. Jarvis, 27 Conn. 42; Ann. Cas. 1914A, 1116) and is no longer applied in England. 45 C. J. 373, note.

Under the present rule in that country the same presumption applies whether letters preceding the family name be vowels or consonants. Reg. v. Dale, 117 Eng. Rep. 1206; Reg. v. Avery, 83 E. C. L. 576; Tweedy v. Jarvis, 27 Conn. 42; 45 C. J. 373; Ann. Cas. 1914A, 1116.

The same rule has, also, been applied in some states in this country. Taylor v. Insley, 7 Colo. App. 175, 42 P. 1046; Tweedy v. Jarvis, 27 Conn. 42, Ann. Cas. 1914A, 1115; 132 Am. St. Rep. 577; 45 C. J. 373.

None of these cases, however, hold that the initials of a man's Christian name preceding his family name properly identify him in a legal proceeding but merely take the position that in the absence of anything to show the contrary the letters so used will be presumed to be his real Christian name and not the initials standing therefor. Gerrish v. State, 53 Ala. 476; 132 Am. St. Rep. 577.

Perhaps we might also add that we have not sufficiently investigated the question to determine whether the presumption above referred to applies to the records of courts of inferior jurisdiction. However that may...

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