Strasser v. Ress, 34301

• Decision Date: 24 January 1958
• Docket Number: No. 34301,34301
• Parties: Harold G. STRASSER, Appellant, v. L. N. RESS, first and real name unknown, Director of Motor Vehicles, Appellee.
• Court: Nebraska Supreme Court

Page 619

87 N.W.2d 619

165 Neb. 858

Harold G. STRASSER, Appellant, v. L. N. RESS, first and real name unknown, Director of Motor Vehicles, Appellee.

No. 34301.

Supreme Court of Nebraska.

Jan. 24, 1958.

Syllabus by the Court

1. A certificate made by the judge or clerk of the county court as required by section 39-795, R.S.Supp., 1955, is not required to be attested by the seal of the county court.

2. The use of a name is to designate the person intended and that object is accomplished when the name given him has substantially the same sound and appearance as his true name.

3. The doctrine of idem sonans has been modified or enlarged to conform to the rule that a variance in names to be material must be such as has misled the person to his prejudice.

4. An alteration of a written instrument which neither varies its meaning nor alters its legal effect is an immaterial change and does not effect or invalidate it.

Shotwell, Vance & Marchetti, Omaha, for appellant.

C. S. Beck, Atty. Gen., Cecil S. Brubaker, Asst. Atty. Gen., for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

BOSLAUGH, Justice.

Appellee on August 31, 1956, revoked the license of appellant authorizing him to operate a motor vehicle in this state for 1 year from July 3, 1956, because appellee believed that appellant had accumulated more than 12 points within the period commencing with November 18, 1954, and continuing through July 3, 1956. Appellant prosecuted an appeal from the action of appellee within the time and in the manner provided by law to the district court for Douglas County. Appellant filed an amended petition on which the case was heard and disposed of in that court. Appellee interposed a general demurrer thereto. It was sustained and a judgment of dismissal of the cause was rendered. This appeal is from the action of the trial court.

The substance of the parts of the amended petition relevant to this appeal is as follows: Appellant was holder of license No. J 8 17072 issued by the state authorizing him to operate a motor vehicle therein. Appellee made an order August 31, 1956, revoking the license of appellant for the period of 1 year from July 3, 1956, and appellant appealed therefrom to the district court for Douglas County, the county of his residence, within the time and in the manner permitted by law. The name of appellant has been and is Harold G. Strasser and he has not used or been known by the name of Strassen or Harald G. Strassen. The action of appellee in revoking the license of appellant is contrary to law, is in excess of his power, and is void because appellee (a) exceeded his authority in assessing 3 points against appellant for the offense of speeding on the basis of a purported certified judgment of conviction of the county court of Custer County because the alleged copy of the record of that court was not authenticated by the judge of the court or at all, as required by law; (b) exceeded his authority in assessing 3 points against appellant for the offense of speeding on the basis of an abstract of the record of a justice of the peace court of Central City showing a conviction of Harald G. Strassen for the offense of speeding but the abstract did not purport to show the operator's license number or the motor vehicle license number of Harald G. Strassen but it did recite that neither of them was obtained; (c) materially changed and altered the said abstract of conviction of Harald G. Strassen by inserting therein the operator's license number and the motor vehicle number of Harold G. Strasser; and (d) exceeded his authority by assuming to exercise discretion in changing and altering the abstract of conviction of Harald G. Strassen above described and by assessing 3 points because thereof and thereunder against appellant. The relief sought was an order vacating the revocation order and restoring the driver's license.

The brief of appellant says that appellee assessed 3 points against appellant for the offense of speeding upon a judgment of the county court of Custer County which 'bears no seal of the court purporting to have issued it * * *.' There is no identical allegation of that in the amended petition. It alleged a conclusion that appellee exceeded his power in charging appellant 3 points for the offense of speeding on a purported certified copy of the judgment of the county court of Custer County 'which purported certificate is not authentic as being in compliance with statutory requirements relating thereto.' This part of the pleading was indefinite, ambiguous, and alleged no issuable fact. The effect of the asserted absence of the seal from the certification is not discussed in the brief of appellant. The county court is a court of record. The statute requires the clerk of a court of record to certify to appellee any record of conviction therein which is within the reach of the point system of the state. Section 39-795, R.S.Supp., 1955. The statute is silent concerning the use of a seal in making the certification. There is no statute which requires all acts of the county court or the judge or clerk thereof to be attested by the seal of the court. It is generally provided by section 24-540, R.R.S.1943, that: 'Every record made in any county court, excepting original orders, judgments and decrees thereof, shall have attached thereto a certificate signed by the judge of such court * * * and it shall not be necessary to call such judge or his successor in office to prove such record so certified. And in any cause, matter or proceeding in which the court or judge has jurisdiction, and is required to make a record not provided for in sections 24-501 to 24-553, such record shall be certified in the same way and with like effect as aforesaid.' Here again the specified verification is a 'certificate signed by the judge' and no mention is made of a seal. A dependable authority asserts that the seal of the officer is not essential to the certificate in the absence of a statute requiring the certificate to bear such a seal. 20 Am.Jur., Evidence, § 1039, p. 876. See, also, Belford, Clarke & Co. v. Scribner, 144 U.S. 488, 12 S.Ct. 734, 36 L.Ed. 514; Annotation, Ann.Cas.1912C, 942. The absence of a seal from the certification made to appellee by the county court of Custer County was not fatal to the effectiveness of it.

The abstract of the record of a conviction for speeding in a justice court at Central City was made and delivered to appellee by the justice of the peace. It named the person who was convicted as Harald G. Strassen. Above a line therein following the printed words 'Operator's License No.' there were written in typewriting the words 'Not Obtained.' Above another line therein following the printed words 'Vehicle License No.' and immediately below the typewritten words 'Not Obtained' were ditto marks. Appellant by his pleading says that his name is Harold G. Strasser and that he has never used or been known by any other name; that he has never used or been known by the name of Strassen and that this is also true as to the name Harald G. Strassen; that there is no identification in the certificate of conviction of Harald G. Strassen or otherwise that he was or is the same person as Harold G. Strasser; and that the act of appellee in assessing 3 points against appellant because of the conviction of Harald G. Strassen was unauthorized and illegal and could not contribute to or be a basis for the revocation of the license of appellant to operate a motor vehicle. This involves some consideration of the doctrine of idem sonans. These words translated into English mean having the same sound. Because of the arbitrary orthography or pronunciation given to...