Collingsworth v. Hutchison

• Decision Date: 17 January 1939
• Docket Number: 28237.
• Parties: COLLINGSWORTH et al. v. HUTCHISON.
• Court: Oklahoma Supreme Court

90 P.2d 416

185 Okla. 101, 1939 OK 17

COLLINGSWORTH et al. v. HUTCHISON.

No. 28237.

Supreme Court of Oklahoma

January 17, 1939

Rehearing Denied May 16, 1939.

"Idem sonans" means having the same sound.

Syllabus by the Court.

1. Service by publication under name other than defendant's real name is sufficient to support judgment by default under modified doctrine of idem sonans, where name as published both appears and sounds similar to real name.

2. Under the rule announced in the foregoing paragraph, the name "O. F. Hutchinson" is idem sonans with "O. F Hutchinson."

3. A judgment of a court of general jurisdiction is not subject to collateral attack unless lack of jurisdiction appears on the face of the judgment roll.

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

Action by Cora Hutchison against Jennetta Collingsworth and others to quiet title. From a judgment in favor of the plaintiff the defendants appeal.

Judgment reversed, with directions to enter judgment for defendants.

Twyford & Smith, of Oklahoma City, and Forrest M. Darrough, of Tulsa for plaintiffs in error.

Stuart, Bell & Ledbetter, of Oklahoma City, for defendant in error.

HURST Justice.

This is an action to quiet title brought by Cora Hutchison against Jennetta Collingsworth and others holding under her. Plaintiff, Cora Hutchison, claimed title as widow and heir of O. F. Hutchison, who had acquired a tax title to the land in controversy. Defendant, Collingsworth, claimed title from the original owner of the land, which had been quieted in her in an action based upon service by publication, against "O. F. Hutchinson" and his unknown heirs. The principal question involved in the court below was whether the judgment obtained upon service by publication against "O. F. Hutchinson" and his unknown heirs was valid as against "O. F. Hutchison" and his unknown heirs. The trial court held that the variance in the spelling of the names was fatal to the service on plaintiff as an unknown heir of O. F. Hutchison, and cancelled the judgment as to her and quieted title in plaintiff as against defendants.

1. The first contention made by defendants in their appeal to this court is that the service in the former judgment against "O. F. Hutchinson" and his unknown heirs is valid as against "O. F. Hutchison" and his unknown heirs under the doctrine of idem sonans.

"Idem Sonans" translated into English means "having the same sound". Bouvier's Law Dictionary, Rawle's Third Revision, Vol. 1, p. 1484. Regarding the doctrine, it is said in 19 R.C.L. 1334 that "on account of the arbitrary orthography and pronunciation given to proper names, and on account of the variant spelling of names resulting from ignorance, the courts have formulated the doctrine of idem sonans. The use of a name is merely to designate the person intended; and that object is fully accomplished when the name given to him has the same sound with his true name. Hence in legal proceedings a mistake in spelling the name of a party is immaterial if both modes of spelling have the same sound". The recognized test for determining if names are idem sonans is whether, although spelled differently, the attentive ear finds difficulty in distinguishing the two names when pronounced. 19 R.C.L. 1334; 45 C.J. 383. The doctrine receives general recognition in cases where the party in question has been actually served, or is actually in court, for in such cases the emphasis is on the pronunciation and there could be no injury in holding names of similar sound to be idem sonans. The rule has been thus applied by this court in Maine v. Edmonds, 1916, 58 Okl. 645, 160 P. 483, where it was held that "Edmonds" and "Edmunds" are idem sonans.

But in cases involving service by publication, where property rights are involved, there is some discord in the authorities, and such a case has not been passed upon by this court. Some jurisdictions give full force to the doctrine and some reject it altogether. Others disregard the sound of the names and predicate their holding solely on appearance. See 19 R.C.L. 1335 and cases cited; 45 C.J. 390. Still other jurisdictions take a modified view and require, in order to support a judgment based upon publication service, that the name, as published, both appear and sound similar to the real name. Guaranty Abstract Co. v. Relf, Tex.Civ.App., 1926, 280 S.W. 616. We think this is the better view. The emphasis, in such cases, should be placed upon the appearance, but it is not proper to disregard altogether the pronunciation. To do so, or to reject the doctrine entirely, would perhaps lead to the overturning of judgments in many cases through ignorance or mere clerical errors and would tend to impair the stability of judgments. As to the question of whether the names sufficiently appear the same, the test seems to be whether the two names look substantially the same in print, and further, whether the variation is such that defendant or his acquaintances upon reading the published notice would not be misled as to the person intended. 19 R.C.L. 1335. See Ordean v. Grannis, 1912, 118 Minn. 117, 136 N.W. 575, 1026, L.R.A.1915B, 1149.

Applying these principles to the instant case, we have two considerations. First, does the name "O. F Hutchinson" and "O. F. Hutchison" sound the same when pronounced. It must be borne in mind that we must consider the name as pronounced by the "generality of mankind". Miltonvale State Bank v. Kuhnle 1893, 50 Kan. 420, 31 P. 1057, 34 Am.St.Rep. 129. We think that it cannot be doubted that the similarity in sound is so great that, were the names pronounced by one who was the least careless in articulation, as certainly is the "generality of mankind", the difference in sound would be scarcely perceptible. The cases are so numerous and varied as to what names are idem sonans and what are not, that the examination of individual decisions is not of much assistance. See collection of cases in 45 C.J. pp. 384-389, notes 14, 20. The books are full of hair-breadth distinctions and conflicts. Each case must be tested upon its own facts by an application of the recognized criteria. However, inasmuch as it is suggested in Kelly v. Kuhnhausen, 1908, 51 Wash. 193, 98 P. 603, 130 Am.St.Rep. 1093, that the commonness of the name may be considered to militate against the application of the rule in a given case, it may be well to...