Maine v. Edmonds
|160 P. 483,58 Okla. 645
|10 October 1916
|MAINE ET AL. v. EDMONDS.
|Oklahoma Supreme Court
Syllabus by the Court.
The law does not generally recognize a middle name, but looks rather to the identity of the individual, and when this identity is established, this is all that the law requires.
The omission of or a mistake in the use of an initial does not affect the jurisdiction of the court, where the right party is actually served with process and has appeared in court.
By the doctrine of idem sonans, two names, though spelled differently, if they sound alike are regarded as the same. Even slight difference in their pronunciation is unimportant. If the attentive ear finds difficulty in distinguishing the two names when they are pronounced, they are within the rule.
An action brought in the courts of this state, upon a judgment rendered in a United States commissioner's court in the Indian territory, is governed as to the time in which an action thereon will be barred by the laws in force at the time the judgment was rendered.
Error from County Court, Hughes County; J. Ross Bailey, Judge.
Action by M. F. Maine and another, doing business as the Equitable Manufacturing Company, against C. R. Edmonds. Judgment for defendant, and plaintiffs bring error. Reversed and remanded with directions.
Milton Brown, of Oklahoma City, and L. S. Fawcett, of Holdenville for plaintiffs in error.
Crump & Skinner, of Holdenville, for defendant in error.
Plaintiffs in error as plaintiffs commenced an action in a justice court of Hughes county, against the defendant in error, to recover upon a judgment rendered against him in favor of plaintiffs in the United States commissioner's court at South McAlester, Ind. T. The parties occupy the same position here which they occupied in the trial court, and will be referred to accordingly. The defendant demurred to plaintiffs' bill of particulars, which demurrer was overruled, and the defendant declined to plead further, whereupon judgment was rendered against him and he appealed to the county court. He again insisted upon his demurrer in the county court, and same was sustained. Plaintiffs declined to plead further whereupon judgment was rendered, dismissing the action at their cost, from which they prosecute error.
The only question presented is whether plaintiffs' bill of particulars states a cause of action. They alleged the beginning of the original action in the United States commissioner's court at South McAlester, Ind. T., the issuance and service of summons upon defendant, and the rendition of the judgment on November 12, 1903. A certified copy of the transcript of said judgment is attached to the bill of particulars. Plaintiffs also alleged a state of facts showing jurisdiction of the commissioner's court to render said judgment, and then plead section 4487, Mansfield's Digest of the Laws of Arkansas (Ind. T. Ann. Stat. § 2954), limiting the time in which actions may be brought upon judgments. They then allege that said section was in force at the time this suit was begun, and that it governed as to the limitation of time in which a suit might be brought on said judgment. They further allege the amount due thereon, and that same was unpaid. No execution was issued upon said judgment, neither was there a transcript of the same filed in the United States Court for the Indian Territory at South McAlester, or elsewhere in said Indian Territory.
The present action is against C. R. Edmonds. The transcript of the proceedings in the commissioner's court shows the proceedings there to have been against C. E. Edmunds, and one of the principal questions raised by the demurrer to the bill of particulars was the identity of the defendant in the case at bar with that of the defendant in the judgment rendered in the United States commissioner's court; it being claimed that there is no such similarity of names as would warrant the rendition of judgment herein against the defendant. If we concede that this question can be raised by demurrer, the court would not be justified in sustaining it on that ground. The bill of particulars alleged that plaintiff commenced an action in the United States commissioner's court against defendant, and that summons was served upon him and judgment rendered against him therein. These allegations were admitted by the demurrer. One of the objections was based upon the fact that the middle letter or initial of defendant's name, as contained in the transcript of the judgment, was different from that by which he was sued in the present proceeding, and it is claimed that this error in the middle letter or initial of defendant's name was fatal to a recovery herein. It is generally held that the law does not recognize a middle name, but looks to the identity of the individual, and when this indentity is clearly established that is all that the law requires, and an omission of or a mistake in an initial does not affect the jurisdiction of the court where the right party is actually served with process and appeared in court. 21 A. & E. Ency. Law (2d Ed.) 307; 29 Cyc. 265; D'Autremont et al. v. Anderson Iron Co. et al., 15 Ann. Cas. 114, note; 1 Am. Rul. Cases, 1; Franklin et al. v. Talmadge, 5 Johns. (N. Y.) 84, 1 Am. Rul. Cas. 36; Edmundson v. State, 17 Ala. 179, 52...
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Tucker v. Dominion
...of this. Id. In employing the doctrine of idem sonans,4 the entire name is taken into account. See Maine v. Edmonds, 1916 OK 1063, 58 Okla. 645, 160 P. 483. If two names are pronounced similarly in the English language, a variance in their spelling is immaterial. Id. at ¶ 4, 160 P. at 484-4......