Guaranty Abstract Co. v. Relf

Citation280 S.W. 616
Decision Date28 January 1926
Docket Number(No. 305.)
PartiesGUARANTY ABSTRACT CO. v. RELF.
CourtCourt of Appeals of Texas

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

Trespass to try title by Mrs. Annie O. Relf against the Guaranty Abstract Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Jas. P. Alexander, W. H. Forrester, and A. T. Blackshear, all of Waco, for appellant.

Curtis Douglass and W. L. McConnell, both of Waco, for appellee.

BARCUS, J.

Appellee instituted this suit against appellant in trespass to try title. Appellant answered by a plea of not guilty. The cause was tried to the court, and resulted in a judgment for appellee. The court filed its findings of fact and conclusions of law, which constitute the only statement of facts in the record.

The property involved is lots 3 and 4, block 16, of the Prather's Anita Park addition to the city of Waco. Appellee, Mrs. Annie O. Relf, a widow, claims title by a regular chain from the sovereignty. Appellant claims title by virtue of a tax sale. In November, 1920, the city of Waco filed suit against Mrs. A. O. Rolf for delinquent taxes against the above property. The attorney for the city filed an affidavit that he was not able, after diligent search, to locate Mrs. A. O. Rolf, and service by publication was had on her. A judgment was rendered and order of sale issued, and, under the finding of the court, all the proceedings in said suit were regular, except that the name of appellee in said tax suit was "Mrs. A. O. Rolf" instead of "Mrs. Annie O. Relf." The court further found that, when the suit was filed, the deed records of McLennan county showed that the property was owned by Mrs. Annie O. Relf, and further found that, while the city attorney who filed the tax suit and made the affidavit did not know her address, he could have, by the exercise of reasonable diligence, ascertained same. The trial court found as a matter of law that the names "Mrs. Annie O. Relf" and "Mrs. A. O. Rolf" were not in fact idem sonans, and that by reason thereof the tax judgment was void, and that the alleged tax sale did not convey title.

Appellant presents two propositions: First, that the tax judgment is valid because the names "Mrs. Annie O. Relf" and "Mrs. A. O. Rolf" are idem sonans, and citation by publication for Mrs. Rolf was sufficient to notify and bind Mrs. Relf; and, second, that the tax judgment, being regular on its face, cannot be attacked collaterally by reason of the affidavit of the city attorney being unfounded because of the fact that he could have ascertained her residence by the exercise of reasonable diligence. We will discuss the propositions in the order stated.

The Supreme Court of Texas, in the early case of Edrington v. Allsbrooks, 21 Tex. 186, stated that "notice by publication is, at best, but a miserable substitute for personal service," and it has been the policy of our courts to strictly scrutinize a judgment obtained on constructive service by publication. Since service by publication is purely a statutory method, and the Legislature has provided a special method for the collection of delinquent taxes, our courts have consistently held that said statutes must be strictly complied with. Harris v. Hill, 117 S. W. 907, 54 Tex. Civ. App. 437; Byrnes v. Sampson, 11 S. W. 1073, 74 Tex. 79; Davenport v. Rutledge (Tex. Civ. App.) 187 S. W. 988.

The question of what names are, and what are not, idem sonans has been the source of much and varied litigation and opinions. The most complete treatment of the subject which we have found is in the elaborate notes to Thornily v. Prentice, 100 Am. St. Rep. 322, in which several pages of names that have been held idem sonans and a number of pages of those that have not been are set forth. Under the general trend of authority, as we construe same, the rule may be stated that, where the party in question has been actually served, or is actually in court, names of similar sound or pronunciation have been held to be idem sonans, since there could be no injury. On the other hand, the general rule, as we understand same from the weight of authority, is that, where property rights are involved and service is had by publication, unless the name of the defendant as published would both appear and sound similar to the real name of the defendant, it is not sufficient to support a judgment by default. In the leading case in this state on this question (Bosse v. Cadwallader, 24 S. W. 798, 86 Tex. 336) the Supreme Court held that, where a suit had been brought by Bosse, and through some clerical error the judgment had been written up as "Busse," the names were idem sonans, and did not make the judgment void. In that case the parties were all in court, and no one was affected by said judgment, except those who had actual knowledge thereof. To the same effect is the holding in the case of Dillahunty v. Davis, 12 S. W. 55, 74 Tex. 344, in which it was held that there was not a variance in the notes pleaded and offered in evidence, where one note was signed "H. C. Dillaunty" and the other "Dillahinty"; the court holding that the names were within the rule of idem...

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3 cases
  • Collingsworth v. Hutchison
    • United States
    • Oklahoma Supreme Court
    • 17 Enero 1939
    ... ... 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 ... ...
  • Briggs v. State
    • United States
    • Texas Court of Criminal Appeals
    • 12 Mayo 1948
    ...in which "Hawk" and "Hauk", words pronounced with the same sound, should be held not to come within the rule. In Guaranty Abstract Co. v. Relf, Tex.Civ.App., 280 S.W. 616, "Mrs. A. O. Rolf" was held not to be idem sonans with "Mrs. Annie O. Relf," so as to validate service by publication in......
  • Collingsworth v. Hutchison
    • United States
    • Oklahoma Supreme Court
    • 17 Enero 1939
    ...based upon publication service, that the name, as published, both appears and sounds similar to the real name. Guaranty Abstract Co. v. Relf (1926, Tex. Civ. App.) 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 n......

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