Green v. Meyers

• Decision Date: 16 February 1903
• Citation: 72 S.W. 128,98 Mo. App. 438
• Court: Missouri Court of Appeals
• Parties: GREEN v. MEYERS et al.<SMALL><SUP>*</SUP></SMALL>

72 S.W. 128

98 Mo. App. 438

GREEN v. MEYERS et al.^*

Court of Appeals at Kansas City, Missouri.

February 16, 1903.

JUDGMENT—RECORD—NOTICE—IDEM SONANS—SUFFICIENCY OF ENTRY.

1. A purchaser of property from Eleanor G. Sibert is charged with notice of a judgment entered against his vendor, which appears in the judgment abstract as entered against E. G. Seibert, the names being idem sonans and practically identical.

2. Although indices of a judgment abstract are kept on the vowel system, and names beginning with "Si" are found several pages distant from those beginning with "Se," a purchaser of property from one whose name is Sibert is charged with notice that the name may be spelled Seibert, and must search the record under both indices.

3. The rule of idem sonans applies to records.

4. A judgment, abstracted by the initials of the Christian name, "E. G.," is sufficient to charge a purchaser of property from "Eleanor G." with notice of its existence.

5. Rev. St. 1899, § 3759, requires an abstract of judgment to state "fourth, the amount of the debt, damages and costs." Held, an omission to name the costs, or amount thereof, does not nullify a judgment otherwise properly entered.

Appeal from circuit court, Jackson county; J. H. Slover, Judge.

Action by Robert L. Green against Harry J. Meyers and another. From a judgment for plaintiff, defendants appeal. Reversed.

W. C. Hock, for appellants. L. C. Boyle and Sidney B. Wood, for respondent.

ELLISON, J.

This is a petition for injunction to restrain the sale of plaintiff's real estate under an execution. Plaintiff had judgment in the trial court.

On April 23, 1901, the plaintiff purchased from Eleanor G. Sibert the property in question. Theretofore, on January 18, 1901, defendants recovered judgment against E. G. Seibert for $108 and costs, and on that day took a transcript of the judgment to be filed with the clerk of the circuit court, where it was abstracted in the abstract of judgments as a judgment against E. G. Seibert. Personal service was had in the suit upon which the judgment was rendered. And E. G. Seibert and Eleanor G. Sibert are one and the same person. Plaintiff had no actual notice of the judgment when he purchased the property, and the question is, does the record charge him with notice?

1. The names Seibert and Sibert are not only idem sonans—they not only sound the same in utterance—but they are, practically, the same name. Therefore, no matter which way it may be spelled by the party himself, or by the recording officer, it is notice. It is common knowledge that proper names are spelled in a variety of ways, and everybody is presumed to have such knowledge. Thus, "Reed," "Reid," and "Read," are different ways of spelling one name. Manifestly, the record of a judgment against "Reed" is notice to a subsequent purchaser from the same man signing the deed as "Reid." "Persons searching the judgment docket for liens ought to know the different forms in which the same name may be spelled, and to make their searches accordingly, unless, indeed, the spelling is so entirely unusual that a person cannot be expected to think of it." Myers v. Fegaly, 39 Pa. 434, 80 Am. Dec. 534.

2. The fact that the indices are kept on the vowel system, as in this case, and that names beginning with the letters "Si" are found several pages further on than those beginning with "Se," can make no difference, for, as before stated, one must be charged with notice that the name he seeks may be found spelled either way.

3. But it has been decided in Pennsylvania that, in so far as the initial capital letter is concerned, this must be understood to apply to the English language, for our records are kept in that language. So that the same name may be spelled in such different way in some other language as not to appear to be the same to the English mind, the difference producing a tendency to mislead. Thus, the letters Y and J are prononunced alike in the German language; yet a judgment entered against George P. Joest is not notice of a judgment against George P. Yoest. Heil's Appeal, 40 Pa. 453, 80 Am. Dec. 590. There is nothing to suggest to the ordinary English mind in looking through the letter Y, in the indices, that the name might be found under some other capital. If, however, in the spelling of a name, letters following the capital have the same sound in a foreign language that a different letter has in our language, and this sound is customarily given it in the community, then they will be held idem sonans, as Bupp for Bopp in Myers v. Fegaly, supra. As to these suggestions, it is not necessary that we make any decision, and we do not.

4. Some confusion has arisen in the authorities as to whether the rule as to idem sonans applies to records. It is said that the law of notice by record is addressed to the eye and not the ear, and that therefore the rule cannot apply to records. It is true that record notice is principally a matter of sight and not sound. Yet it is, above all, a matter for the consideration of the mind, and if the record of a name spelled in one way should directly suggest to the ordinary mind that it is also commonly spelled another way, the searcher should be charged with whatever the record showed in some other spelling under the same capital letter. It is not necessary to...