Ordean v. Grannis

• Decision Date: 07 June 1912
• Citation: 136 N.W. 575,118 Minn. 117
• Parties: ORDEAN et al. v. GRANNIS et al.
• Court: Minnesota Supreme Court

118 Minn. 117

136 N.W. 575

ORDEAN et al.

v.GRANNIS et al.

Supreme Court of Minnesota.

June 7, 1912.

Appeal from District Court, St. Louis County; Wm. A. Cant, Judge.

Action by Albert L. Ordean and others against Henry J. Grannis and another. From the judgment, both parties appeal. Reversed, with directions, on appeal of plaintiffs, and affirmed on appeal of defendants.

Syllabus by the Court

Where a summons is served by publication, and there is an error in the name of a defendant, though the true name and the name given be not strictly idem sonans, if the names when printed look substantially alike to the eye, and it appears that neither defendant nor those who knew him could be misled by the difference, judgment by default rendered on such service is valid as against collateral attack.

Applying this rule, it is held, where the true name of defendant was ‘Albert B. Geilfuss, assignee,’ and the name as published was ‘Albert Guilfuss, assignee,’ the difference between the names, each considered as a whole, was not such a defect as rendered the judgment void.

Where a court has jurisdiction of the subject-matter and the parties, and renders a judgment which it had jurisdiction to enter if the facts pleaded and proved warranted it, such judgment, though erroneous under the pleadings and proof in the case, is not void, and cannot be attacked collaterally. This rule applied to a decree of sale in a partition action, though it may have been erroneous under G. S. 1894, s 5782, because the liens on the property exceeded in amount its value. Jaques & Hudson, John G. Williams, and William Elder, all of Duluth, for plaintiffs.

H. J. Grannis, for defendants.

BUNN, J.

Plaintiffs brought this action to determine adverse claims to real estate in St. Louis county. The trial resulted in a judgment to the effect that plaintiffs were the owners of an undivided four-fifths interest in the land, and defendant Grannis the owner of an undivided one-fifth interest. Plaintiffs appealed from this judgment, as did also defendants Grannis and Dickerman.

There is no controversy over the facts, which are fully stated in the findings, and may be briefly stated as follows:

November 8, 1895, George A. Elder owned an undivided one-fifth interest in the land, Mesaba Land Company an undivided one-fifth, John McKinley an undivided one-fifth, and Poca Iron Company an undivided two-fifths. On or prior to this date there were docketed 10 judgments against George A. Elder, and each was a lien upon his interest in the land. On or prior to November 8, 1895, there were docketed some 47 judgments against John McKinley, and each was a lien upon McKinley's undivided interest in the land. Among the judgments against McKinley were two rendered in favor of Albert B. Geilfuss, assignee-one for $2,854.02, which was docketed in the judgment lien docket as in favor of Albert Geilfuss, assignee; the other for $2,125.60, which was docketed as in favor of Albert B. Geilfuss, assignee.

November 8, 1895, George A. Elder commenced a partition suit against the other owners of undivided interests in the land. In this action all of the judgment creditors of Elder and of McKinley were made defendants, except that the name Albert Geilfuss, assignee, or the name Albert B. Geilfuss, assignee, did not appear in the summons or other files in the action. The summons named Albert ‘Guilfuss,’ assignee, as a defendant. There was no personal service of the summons upon Albert B. Geilfuss, assignee, who was the real owner of the two judgments and resided in Milwaukee, Wis. The summons was duly served by publication upon the defendant designated as Albert Guilfuss, assignee, and a copy of the summons was addressed to said name at Milwaukee, Wis. Neither ‘Geilfuss' or ‘Guilfuss' appeared in the action.

The complaint in the partition action described the interests of the parties and the liens on their interests, including the numerous judgments, and asked for a partition of the lands, or, in case that could not be done, for a sale under the decree of the court. The trial resulted in a decision and judgment that the lands could not be divided, and ordering them sold by a referee to the highest bidder, the proceeds to be divided among the defendants according to their respective rights under the law. Thereafter the sale was made to August Schupp for $6,700, and duly confirmed by the court, and a deed executed and delivered to the purchaser. Plaintiff's title to the lands is derived by mesne conveyances from Schupp.

The judgment of Geilfuss, assignee, against McKinley for $2,854.02, was in 1901 assigned to F. L. Buell. Thereafter execution was issued on this judgment and levied on McKinley's one-fifth interest in the lands, which was sold to Buell on the execution sale. Defendant Grannis succeeded by mesne conveyances to whatever title was acquired by Buell under this execution sale, and claims title to an undivided one-fifth interest in the lands by reason thereof. This claim the trial court sustained.

In 1900 Charles E. Dickerman recovered a judgment for $23,095.34 against George A. Elder in the district court of St. Louis county, which was docketed. Defendants Grannis and Dickerman became the owners of this judgment, and in February, 1910, the interest of Elder in the lands in controversy, if he had any interest therein, was sold on execution sale under such judgment to the defendants Grannis and Dickerman, who claim a lien upon an undivided one-fifth interest in the lands by reason of this execution sale. The claim was not sustained by the trial court.

[1][2] Upon the appeal of plaintiffs but one question is involved. The trial court held that no jurisdiction was acquired in the partition suit over the judgment lien of Albert B. Geilfuss, assignee. If this is correct, it is clear that the lien of his judgment on the McKinley interest was not affected by the decree in the action, and that the subsequent sale of that interest under execution on the judgment gave a good title thereto to the purchaser. If, on the other hand, the court acquired such jurisdiction, the McKinley interest in the lands passed to the purchaser at the partition sale, and is owned by plaintiffs. This, of course, is on the assumption that the court had jurisdiction to decree a sale in the partition action, a question which will be determined in the decision on defendant's appeal.

The precise question is whether a service by publication on ‘Albert Guilfuss, assignee,’ gives the court jurisdiction to render a default judgment binding upon ‘Albert B. Geilfuss, assignee.’ The differences in the name of the defendant served, and the name of the owner of the judgment liens sought to be affected by the action, are the difference between ‘Guil’ and ‘Geil,’ and the omission of the middle initial. The learned trial court, in an exhaustive and able memorandum, reached the conclusion that the names were not idem sonans and that the difference was fatal. The question is by no means free from doubt. The trial court's conclusion is largely based upon the pronunciation of ‘ei’ as it appears in German names, and the pronunciation of ‘ui’ as it appears in English words and proper names. It is evident that Geilfuss is a German name, and quite clear that it is pronounced with the long sound of ‘i.’ Indeed, an examination of the Century Cyclopedia of names fails to disclose a single proper name beginning with ‘Gei’ that is not pronounced with the long sound of ‘i.’ Examples are Geibel, Geierstein, Geiger, Geiler, Geissler, Geisenheim. The name ‘Geilfuss' is apparently made up of the two German words ‘geil’ and ‘fuss.’ On the other hand, ‘Guilfuss' is not a compound of two German words, and has no meaning. ‘Guil’ is not German. It is met with frequently in French, Spanish, and Italian names, and is in these languages pronounced ‘*ve’ or ‘*vw*ve.’ In English words, where the syllable ends in a consonant, it is uniformly pronounced ‘i’ as in ‘guild,’ ‘guilt,’ ‘guinea.’ In English proper names it is given the same sound. Examples are ‘Guilford,’ ‘Guilford Courthouse,’ the London ‘Guildhall,’ ‘Guildenstern,’ ‘Guinevere,’ ‘Guiteau.’ We fail to find a single English proper name where ‘Gui’ is pronounced like ‘guy.’ It may be true, as counsel for plaintiff says, that the name of Hon. Curtiss Guild is pronounced with the sound of long ‘i,’ and that an Illinois family of the same name pronounce it...