Schoenfeld v. Bourne

Citation123 N.W. 537,159 Mich. 139
PartiesSCHOENFELD v. BOURNE et al.
Decision Date10 December 1909
CourtSupreme Court of Michigan

159 Mich. 139
123 N.W. 537

SCHOENFELD
v.
BOURNE et al.

Supreme Court of Michigan.

Dec. 10, 1909.


Error to Circuit Court, Gratiot County; Kelly S. Searl, Judge.

Action by Fred Schoenfeld against Benjamin W. Bourne and another. There was a judgment setting aside a judgment for plaintiff and quashing the writ of attachment, and plaintiff brings error. Affirmed.

Argued before GRANT, MONTGOMERY, OSTRANDER, MOORE, and McALVAY, JJ.

[123 N.W. 537]

Hollis C. Johnson, O. G. Tuttle, and Jno. T. Mathews, for appellant.

Stone & Watson, for appellees.


MOORE, J.

The plaintiff is a resident of Ohio. The defendants reside in the Republic of Mexico. Plaintiff proceeded against the defendants in the circuit court for the county of Gratiot, by attachment, by reason of the nonresidence of the defendants. The writ issued July 10, 1908. Plaintiff attempted to publish a notice of attachment, but in the published notice named the defendants as ‘B. W. Bourne and William H. Dunton.’ On October 15, 1908, an affidavit of publication was filed, made by one of the publishers of the Gratiot Journal, stating therein that the notice annexed thereto had been published in said paper at least once in each week for six weeks, and that the first publication thereof was on the 27th day of August, 1908. This affidavit was subscribed and sworn to on October 9, 1908. On November 6, 1908, the plaintiff filed his declaration, and on the following day entered the default of the defendants. On November 12, 1908, plaintiff took a judgment against the defendants for $6,070.66, and costs. On December 29, 1908, defendants entered a motion to set aside the judgment and quash the writ. On March 4, 1909, the court entered an order granting defendants' motion. The case is brought here by writ of error.

The contentions of defendant are: (1) That, because of the failure of the plaintiff to publish the notice of attachment as required by statute, the court never acquired jurisdiction in the case. (2) That, because of the plaintiff's failure to file proof of publication of the notice of attachment as required by statute, the court, in any event, did not acquire jurisdiction to render judgment in the case. Both of these contentions are opposed by the plaintiff, and while he concedes that, because of lack of personal service of process, it would be the duty of the court to set aside the judgment, and permit the defendants to come in and defend, yet it is his contention that his proceedings and judgment are regular, and the court has only discretionary power to set aside the judgment. In our view of the case, the only question necessary to be considered is whether

[123 N.W. 538]

the publication of notice was fatally defective because defendant William H. Denton was called therein William H. Dunton.

The claim of plaintiff as to this feature of the case is stated by counsel as follows: ‘It seems to me clearly the name of ‘Dunton’ is idem sonans to ‘Denton,’ or perhaps, more properly speaking, the names of ‘Bourne and Dunton’ are idem sonans to ‘Bourne and Denton.’ Especially is this so where they are brought into court at the suit of Fred Schoenfeld, and declared against as joint defendants under a written contract relation. It will be interesting in this connection to examine some of the cases in Michigan upon the question of idem sonans. The name of Kinney and Kenney are held idem sonans. Kinney v. Harrett, 46 Mich. 87, 8 N. W. 708. Also Dixon and Dickson. Reading v. Waterman, 46 Mich. 107, 8 N. W. 691. Also Brearley and Brailey. People v. Gosch, 82 Mich. 31, 46 N. W. 101. Also Ruty and...

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