Oakley v. Pegler
Decision Date | 28 October 1890 |
Citation | 46 N.W. 920,30 Neb. 628 |
Parties | O. R. OAKLEY v. G. H. PEGLER |
Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county. Tried below before FIELD, J.
AFFIRMED.
J. B Archibald, for plaintiff in error, cited on the question as to the name: Scott v. Ely, 4 Wend. [N. Y.], 555; Miller v. Foley, 28 Barb. [N. Y.], 630, and cases; Mead v. Haws, 7 Cow. [N. Y.], 332; Griswald v Sedgwick, 6 Id., 456; Gurnsey v. Lovell, 9 Wend. [N Y.], 319; Farnham v. Hildreth, 32 Barb. [N. Y.], 277; People v. Ferguson, 8 Cow. [N. Y.], 102; People v. Smith, 45 N.Y. 772, 784; Waterbury v. Mather, 16 Wend. [N. Y.], 613; Crandall v. Beach, 7 HOW Prac. [N. Y.], 271; Osborn v. McCloskey, 55 Id., 345; Hancock v. Bank, 93 N.Y. 85; Frank v. Levi, 5 Rob. [N. Y.], 599; Bank v. Magee, 20 N.Y. 363; Gardner v. Kraft, 52 HOW Pr. [N. Y.], 499.
Harwood, Ames & Kelly, contra, cited on the same question: Eggleston v. Son, 5 Rob. [N. Y.], 640; Cooper v. Burr, 45 Barb. [N. Y.], 9; England v. N. Y. Pub. Co., 8 Daly [N. Y.], 375; Linton v. First Nat'l Bk., 10 F. 897; Pancho v. Texas, 8 S.W. 476.
This action was brought in the district court of Lancaster county on a judgment recovered in the state of New York by Pegler against O. R. Oakley.
The answer of the defendant is as follows:
On the trial of the cause judgment was rendered in favor of Pegler. It appears from the transcript before us that the action was brought in Chautauqua county, New York; that service of summons was made upon Oakley in that county, the return being as follows:
Oakley made default and judgment was rendered against him.
It is apparent that that court had jurisdiction of the person and also of the subject-matter of the action, and any errors which may have been committed by it cannot be corrected in this action. The principal error relied upon is that the plaintiff in error was sued by the initial letters of his Christian name and not by his surname.
Mr. Oakley was called as a witness on the trial of the case and testified as follows:
Q. Will you give your full Christian, baptismal name and surname?
A. Oscar Rodman Oakley.
Q. This is the name by which you go and the name by which you are known?
A. It is.
Q. What is your business?
A. Dry goods business.
Q. Where do you reside?
A. Lincoln, Nebraska.
Q. How long have you resided in Lincoln, Nebraska?
A. Since September 1, 1886.
Q. Did you move out here then with your family?
A. I moved my family about that time--August or September--I don't remember.
Q. In September, 1886, were you in any manner or form indebted to this plaintiff?
* * * *
Cross-examination:
Q. What do you say your name is?
A. Oscar Rodman Oakley is my name.
Q. By what name were you known in the business world?
A. Well, a business man often uses his initials, and I very frequently do that of course.
Q. Is it not a fact you use your initials almost entirely?
A. I use my initials in signing checks, I don't know as I do entirely, but I do sometimes.
Q. Is it not a fact that your business signature to your checks is in the form of O. R. Oakley?
A. They are?
Q. I will ask you if it is not a fact that the signature you leave at bank, prepared for that purpose--the bank at which you do business--at the First National Bank, is not O. R. Oakley?
A. Yes, all business men use their initials.
It will be seen from his own testimony that his habit has been and is when signing checks, doing business at banks and other places, to use the initial letters of his Christian name. At common law a declaration describing a party by the initial of his Christian name is bad on special demurrer. (Turner v. Fitt, 3 M. G. & S. 701; Bliss on Code Pleading, sec. 146a.) It should be made to appear, however, that the letter used is but an initial and not the true name. (Tweedy v. Jarvis, 27 Conn. 42.)
Whether an apparently initial letter will be treated as a name must depend upon the manner in which the question is raised.
In the absence of a motion to the contrary, or a pleading calling attention to the fact that it is not the name of the party the court will be warranted in treating it as his name. If the...
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