Kelly v. Kuhnhausen

Citation98 P. 603,51 Wash. 193
PartiesKELLY v. KUHNHAUSEN et al.
Decision Date11 December 1908
CourtUnited States State Supreme Court of Washington

Appeal from Superior Court King County; R. B. Albertson, Judge.

Action by Minnie E. Kelly against Hugo N. Kuhnhausen and others to set aside certain tax proceedings. From a judgment for plaintiff, defendants appeal. Reversed, with instructions to dismiss.

C. J Stephanus, for appellants.

Walter S. Fulton, for respondent.


The facts in this case are stipulated. The respondent, Minnie E Kelly, plaintiff below, was formerly Minnie E. Tiller, and took title to the real estate in question in that name December 8, 1897. The taxes for 1900, 1901, and 1903 were allowed to be become delinquent. On July 28, 1904, a certificate of delinquency for the delinquent taxes of 1900 was issued to Hugo N. Kuhnhausen. On October 18, 1904, the holder of the certificate of delinquency began an action to foreclose the same, but named as the parties defendant thereto 'Minnie E. Tilter and John Doe Tilter, her husband, whose true first name is to plaintiff unknown, and all persons unknown, if any, having or claiming an interest or estate in and to the hereinafter described real property.' The only service had was by publication addressed to the defendants as stated above; Minnie E. Tiller being a nonresident of the state during all the time mentioned herein. No appearance, was made by any of the defendants, and judgment and sale followed; the defendant Fred Nuglisch claiming through the purchaser at the tax sale. This action was brought to set aside the tax proceedings because the notice or summons thereunder was addressed to Minnie E. Tilter, instead of Minnie E. Tiller. On the trial of the cause judgment was rendered in favor of the plaintiff, the respondent here, and appeal followed.

The appellants contend that the names Minnie E. Tilter and Minnie E. Tiller are idem sonans, and that the court erred in holding that they were not. This is really the only question to be determined in the case. 'Idem sonans is said to exist if the attentive ear finds difficulty in distinguishing them when pronounced, or if common and long-continued usage has by corruption or abbreviation made them identical in pronunciation.' State v. Griffie, 118 Mo. 188 23 S.W. 878. The same definition might be brought into requisition where the duty devolves upon the eye, instead of the ear, to distinguish the names. 'The rule of idem sonans is 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 pronouced according to the commonly accepted methods, a sound practically identical with the sound of the correct name as commonly pronounced, the name as thus given is a sufficient designation of the individual referred to and no advantage can be taken of a clerical error. Hubner v. Reickhoff, 103 Iowa, 368, 72 N.W. 540, 64 Am. St. Rep. 191. It is said in State v. White, 34 S.C. 59, 12 S.E. 661, 27 Am. St. Rep. 783, quoting from Schooler v. Asherst, 1 Litt. (Ky.) 216, 13 Am. Dec. 223: 'The doctrine of idem sonans has been much enlarged by modern decisions to conform to the growing rule that a variance, to be material, must be such a one as has misled the opposite party his prejudice'--and, quoting from Ward v. State, 28 Ala. 60: 'The books abound in...

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11 cases
  • Dobbins v. Mendoza
    • United States
    • Court of Appeals of Washington
    • October 16, 1997
    ...a change as to be misleading. Grannis v. Ordean, 234 U.S. 385, 395-96, 34 S.Ct. 779, 783-84, 58 L.Ed. 1363 (1914); Kelly v. Kuhnhausen, 51 Wash. 193, 195-96, 98 P. 603 (1908); Rosholt, 19 Wash.App. at 306-07, 575 P.2d 726; accord In re Esparza, 118 Wash.2d 251, 259-60, 821 P.2d 1216 The que......
  • Strasser v. Ress, 34301
    • United States
    • Supreme Court of Nebraska
    • January 24, 1958
    ...Law Dictionary (DeLuxe 3d Ed.), Idem Sonans, p. 914; Collingsworth v. Hutchison, 185 Okl. 101, 90 P.2d 416; Kelly v. Kuhnhausen, 51 Wash. 193, 98 P. 603, 130 Am.St.Rep. 1093; Jones v. State, 115 Tex.Cr.R. 418, 27 S.W.2d 653, 65 C.J.S. Names § 14, p. 24; 38 Am.Jur., Name, § 36, p. 612. It is......
  • State v. Wahl
    • United States
    • United States State Supreme Court of Kansas
    • June 6, 1925 is said, may be brought into requisition where the duty devolves on the eye instead of the ear to distinguish the names. (Kelly v. Kuhnhausen, 51 Wash. 193.) Names are used to designate persons intended, and that purpose is accomplished when the name given has substantially the same soun......
  • Esparza, In re
    • United States
    • United States State Supreme Court of Washington
    • January 9, 1992
    ...and applicable to the crop lien statute. The principle of idem sonans is set forth with detail and accuracy in Kelly v. Kuhnhausen, 51 Wash. 193, 194, 98 P. 603 (1908) as "The rule of idem sonans is that absolute accuracy in spelling names is not required in legal documents or proceedings, ......
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