Hubner v. Reickhoff

• Decision Date: 20 October 1897
• Parties: HUBNER v. REICKHOFF.
• Court: Iowa Supreme Court

103 Iowa 368

72 N.W. 540

HUBNER

v.REICKHOFF.

Supreme Court of Iowa.

Oct. 20, 1897.

Appeal from district court, Plymouth county; F. R. Gaynor, Judge.

William Reickhoff died, testate, on the 8th day of September, 1894, and the defendant is the executor of his will. The plaintiff presented a claim against the estate for damages based on a breach of promise of marriage. There is a denial by operation of law. The cause was submitted to a jury, that returned a finding for plaintiff, and the defendant appealed. Reversed.Haines & Lyman, I. S. Struble, and G. W. Pitts, for appellant.

Argo & McDuffie, for appellee.

GRANGER, J.

1. It became necessary for the plaintiff, in order to show a valid marriage contract with William Reickhoff, to establish a divorce from Heindrick Keisel, to whom she had been married. She had left him in Germany, and she presented to the court a certified copy of a decree from the district court of Nebraska in and for Douglas county, showing a divorce of Amanda M. Keisel from Heindrick Keisel, on the 2d day of September, 1888. The decree shows that jurisdiction was obtained by a service of notice by publication. In support of objections to the decree, as evidence, the defendant presented the record, from which proof of service must be found. The notice was addressed to Heindrick Keesel, signed by “Amanda M. Keisel, by J. E. Smith, Attorney.” The notice, as shown of record, required the defendant to appear and answer on or before December 26, 1888. It is argued by appellant as if it was 1887; and, as appellee makes no question as to the fact, we will consider 1887 as the proper date. It appears that the decree was entered, on default of the defendant, on the 2d day of November, 1888. The affidavit for publication was filed November 4, 1887, and that of publication October 13, 1888, showing the publication to have been from November 12 to December 3, 1887. The cause seems to have been continued from the return day, December 26, 1887, to November, 1888, before default or judgment was entered.

The court instructed the jury that the decree as offered was prima facie evidence of a divorce, and the decree was admitted in evidence against numerous objections as to its competency. The question of fact, as to the residence of plaintiff in Nebraska for such time as to give jurisdiction, the court submitted to the jury, with the instruction as to the prima facie effect of the decree. Among the objections urged then and now to the decree is the variance in name between that of plaintiff's husband, “Keisel,” and that in the notice, “Keesel.” It is urged that the variance is fatal to the decree. The following rule is invoked by appellee, found in 16 Am. & Eng. Enc. Law, 122: “The absence of a definite set of rules for the spelling and pronunciation of the names of persons, and more especially of surnames, has led the court to the adoption of a principle known as the rule of ‘idem sonans.’ This rule may be stated to be that absolute accuracy in spelling names is not required in legal documents or proceedings, either civil or criminal; that if the name as spelled in the document, though different from the correct spelling thereof, conveys to the ear, when pronounced according to the commonly accepted methods, a sound practically identical with the correct name as commonly pronounced, the name as thus given is a sufficientdesignation of the individual referred to, and no advantage can be taken of the clerical error.” The author has collected a very extended list of names to which the rule has been applied, and another to which it is held not applicable. In some cases it has been held that the question of whether the rule is applicable is one of fact for the jury, and in others that the issue presents a question for the court. We have examined many, but not all, of the cases cited by the author, and from them no very definite rule can be gathered. Many of the cases are criminal, and the question is one of identity of the person charged with the person on trial, and many others present the question of the identity of the person in court, sought to be charged with an obligation or duty, with the one named in an instrument or document. It is, in such cases, a question whether the person against whom the adjudication is sought is the one represented by the name in the instrument. The reasonableness of the rule in such cases is apparent. An examination of the cases will show that the variance in orthography in names has been held fatal or otherwise, as the facts of the case would warrant, having in view safety in the application of the rule, and just results. This case is unlike any that we...